1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 JAMES WARREN GARDISER, Case No.: 22cv0743-CAB (WVG)

12 Petitioner, NOTICE OF OPTIONS TO AVOID 13 v. DISMISSAL DUE TO FAILURE TO EXHAUST STATE COURT 14 R. MADDEN, Warden, REMEDIES 15 Respondent. 16 17 Petitioner is a state prisoner proceeding pro se with a Petition for a Writ of Habeas 18 Corpus pursuant to

. (ECF No. 1.) He challenges an August 5, 2021, 19 denial of parole for a sentence of 25 years to life imposed following a 1997 conviction in 20 the San Diego County Superior Court. (Id. at 3-4, 8.) It does not appear that state court 21 remedies have been exhausted as to any claim in the Petition. Although the Petition is 22 subject to dismissal without prejudice due to the failure to exhaust state court remedies, 23 Petitioner is first entitled to be notified of his options to avoid such a dismissal. 24 Habeas petitioners who wish to challenge either their state court conviction or the 25 length of their confinement in state prison must first exhaust state judicial remedies. See 26

(b), (c); Granberry v. Greer,

(1987); see also Picard 27 v. Connor,

(1971) (“[A] state prisoner must normally exhaust available 28 state judicial remedies before a federal court will entertain his petition for habeas corpus.”) 1 “A petitioner has satisfied the exhaustion requirement if: (1) he has ‘fairly presented’ his 2 federal claim to the highest state court with jurisdiction to consider it,” which in this case 3 is the California Supreme Court, “or (2) he demonstrates that no state remedy remains 4 available.” Johnson v. Zenon,

(9th Cir. 1996) (citations omitted); see 5 also O’Sullivan v. Boerckel,

(1999) (“[S]tate prisoners must give the 6 state courts one full opportunity to resolve any constitutional issues by invoking one 7 complete round of the State’s established appellate review process.”) The claims presented 8 in the federal courts must be the same as those exhausted in state court and must also allege, 9 in state court, how one or more of his federal rights have been violated. See Picard, 404 10 U.S. at 276 (“Only if the state courts have had the first opportunity to hear the claim sought 11 to be vindicated in a federal habeas proceeding does it make sense to speak of the 12 exhaustion of state remedies. Accordingly, we have required a state prisoner to present the 13 state courts with the same claim he urges upon the federal courts.”); see also Duncan v. 14 Henry,

(1995) (“If state courts are to be given the opportunity to 15 correct alleged violations of prisoners’ federal rights, they must surely be alerted to the fact 16 that the prisoners are asserting claims under the United States Constitution. If a habeas 17 petitioner wishes to claim that an evidentiary ruling at a state court trial denied him the due 18 process of law guaranteed by the Fourteenth Amendment, he must say so, not only in 19 federal court, but in state court.”) 20 There is no indication in the instant Petition that any claim presented has been raised 21 in the California Supreme Court. In Rose v. Lundy,

(1982), the United States 22 Supreme Court adopted a “total exhaustion rule” which requires federal courts to dismiss 23 habeas petitions brought pursuant to § 2254 which do not contain only exhausted claims. 24 Id. at 522. Because the one-year statute of limitations imposed on § 2254 habeas petitions 25 after Rose was decided created a risk of a claim dismissed under Rose becoming time- 26 barred, the Court approved of a procedure by which the Petition is stayed while the 27 Petitioner returns to state court to exhaust. See Rhines v. Weber,

(2005); 28 see also Mena v. Long,

(9th Cir. 2016) (holding that a Rhines stay may 1 be appropriate even for a fully unexhausted petition). The Court may grant a Rhines stay 2 when (1) “the petitioner had good cause for his failure to exhaust,” (2) “his unexhausted 3 claims are potentially meritorious,” and (3) “there is no indication that the petitioner 4 engaged in intentionally dilatory litigation tactics.” Rhines,

. 5 The Court hereby notifies Petitioner of his options to avoid dismissal for presenting 6 a Petition with only unexhausted claims. 7 i) First Option: Demonstrate Exhaustion 8 Petitioner may file further papers with this Court to demonstrate that he has in fact 9 exhausted the claims in the Petition. If Petitioner chooses this option, these papers are due 10 no later than August 8, 2022. 11 ii) Second Option: Voluntarily Dismiss the Petition 12 Petitioner may move to voluntarily dismiss his entire federal petition and return to 13 state court to exhaust the unexhausted claim. Petitioner may then file a new federal petition 14 containing only exhausted claims. 15 Petitioner is cautioned that any new federal petition must be filed before expiration 16 of the one-year statute of limitations. Ordinarily, a petitioner has one year to file his federal 17 petition from when his parole denial becomes final, which is typically 120 days after the 18 hearing, unless he can show that statutory or equitable “tolling” applies.1 See Redd v. 19

20 1

(d) provides: 21 (1) A 1-year period of limitation shall apply to an application for a writ of 22 habeas corpus by a person in custody pursuant to the judgment of a State court. 23 The limitation period shall run from the latest of-- (A) the date on which the judgment became final by the conclusion of direct 24 review or the expiration of the time for seeking such review; 25 (B) the date on which the impediment to filing an application created by 26 State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action; 27 (C) the date on which the constitutional right asserted was initially 28

F.3d 1077, 1084 (9th Cir. 2003) (“[F]or petitioners challenging 2 administrative decisions such as the denial of parole . . . , [the] one-year statute of 3 limitations begins running under § 2244(d)(1)(D) on the date the administrative decision 4 became final.”); see also e.g. Davis v. Ground, No. 12cv0033-THE,

, at 5 *2 (N.D. Cal. March 8, 2013) (explaining that after Redd, under 15 CCR §§ 2041 and 2043, 6 California parole decisions become final 120 days after the decision date absent 7 modification); Duncan v. Walker,

, 176 (2001);

(d). 8 The statute of limitations does not run while a properly filed state habeas corpus 9 petition is pending.

(d)(2); see Nino v. Galaza,

(9th 10 Cir. 1999). But see Artuz v. Bennett,

(2000) (holding that “an application is 11 ‘properly filed’ when its delivery and acceptance [by the appropriate court officer for 12 placement into the record] are in compliance with the applicable laws and rules governing 13 filings.”); Bonner v. Carey,

(9th Cir. 2005) (holding that a state 14 application for post-conviction relief which is ultimately dismissed as untimely was neither 15 “properly filed” nor “pending” while it was under consideration by the state court, and 16 therefore does not toll the statute of limitations), as amended

. However, 17 absent some other basis for tolling, the statute of limitations continues to run while a federal 18 habeas petition is pending. Duncan, 533 U.S. at 181-82. 19 If Petitioner chooses this second option, he must file a pleading with this Court no 20 later than August 8, 2022. 21 22 by the Supreme Court and made retroactively applicable to cases on 23 collateral review; or 24 (D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence. 25 (2) The time during which a properly filed application for State post- 26 conviction or other collateral review with respect to the pertinent judgement 27 or claim is pending shall not be counted toward any period of limitation under this subsection. 28 1 iii) Third Option: File a Motion to Stay the Federal Proceedings 2 Petitioner may file a motion to stay this federal proceeding while he returns to state 3 || court to exhaust his unexhausted claims. If Petitioner wishes to use the Rhines procedure 4 ||he must demonstrate there are arguably meritorious claim(s) which he wishes to return to 5 || state court to exhaust, that he is diligently pursuing his state court remedies with respect to 6 || those claim(s), and that good cause exists for his failure to timely exhaust his state court 7 ||remedies. Rhines,

. If Petitioner chooses this third option, he must file 8 ||a pleading with this Court no later than August 8, 2022. 9 CONCLUSION 10 For the foregoing reasons, the Petition is subject to dismissal for failure to allege 11 ||exhaustion of state court remedies. In order for Petitioner to avoid such a dismissal, he 12 notify the Court, no later than August 8, 2022, which one of the options outlined 13 ||}above he chooses. Petitioner is cautioned that if he fails to timely respond to this Order, 14 || the Petition will be dismissed without prejudice. See Rose,

. 15 || IT IS SO ORDERED. 16 || Dated: July 5, 2022 € 17 Hon. Cathy Ann Bencivengo 18 United States District Judge 19 20 21 22 23 24 25 26 27 28