Delmonico v. Bonta

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 MICHAEL JOHN DELMONICO, Case No. 21-cv-02009-HSG

8 Petitioner, ORDER DENYING REQUEST TO LIFT STAY AND REOPEN ACTION 9 v. Re: Dkt. No. 27 10 ROB BONTA, 11 Respondent.

12 13 Petitioner has filed a pro se action seeking a writ of habeas corpus pursuant to 28 U.S.C. 14 § 2254 challenging a 2018 misdemeanor conviction from Palo Alto Superior Court. On March 21, 15 2022, the Court screened the third amended petition and found that two of the ineffective 16 assistance of counsel (“IAC”) subclaims were unexhausted, sua sponte dismissed these two 17 unexhausted IAC subclaims, and granted Petitioner’s request for a stay of this action pursuant to 18 King/Kelly. Dkt. No. 26. Now pending before the Court is Petitioner’s letter to the Court 19 reporting that the Supreme Court of California returned his petition for review to exhaust state 20 remedies under Cal. R. Ct. 8.508. Dkt. No. 27. The Court construes this letter as a request to lift 21 the stay and reopen this action. The Court DENIES this request for the following reasons. 22 DISCUSSION 23 Petitioner states that he attempted to file a petition for review to exhaust state remedies 24 under Cal. R. Ct. 8.508 and that the California Supreme Court rejected the filing pursuant to Cal. 25 R. Ct. 8.500(a). Petitioner reports that he believes that he has exhausted his state remedies with 26 this rejection notice. Petitioner asks if he has satisfied his requirements at the state level so that he 27 may formally file a request to lift the stay and file a fourth amended petition with the newly 1 reopen this action, the Court DENIES the request, because Petitioner’s filing with the California 2 Supreme Court did not exhaust his state court remedies. 3 A misdemeanant exhausts his or her state court remedies either after direct review of his 4 claims is concluded or after the claims have been presented in state collateral proceedings, 5 depending on the nature of the claim. See McMonagle v. Meyer, 802 F.3d 1093, 1099 & n.1 (9th 6 Cir. 2015). In California, to conclude direct review of claims challenging a misdemeanor 7 conviction, a misdemeanant must first raise his or her claims in a direct appeal to the appellate 8 division of the Superior Court, then file with the appellate division of the Superior Court a request 9 for a certification of transfer to the California Court of Appeal, and finally, directly ask the 10 California Court of Appeal to order transfer of his or her case. Id. at 1096. The California Court 11 of Appeal’s denial of transfer is final immediately and ends direct review of Petitioner’s 12 conviction. Id. (finding that “exhaustion and finality for misdemeanors will largely coincide at the 13 California Court of Appeal. When the Court of Appeal denies transfer, the petitioner will have 14 exhausted his state court remedies”); see also Lull v. California, 2018 WL 3388593, at *1 (E.D. 15 Cal., July 12, 2018) (granting Respondent’s motion to dismiss for failure to exhaust where 16 petitioner failed to request certification to transfer his case to California Court of Appeal but 17 noting that where misdemeanant requests certification of his case for transfer and request is 18 denied, “then the misdemeanant has fully exhausted”) (citing McMonagle, 802 F.3d at 1096, 19 1099). In McMonagle, the Ninth Circuit noted that certain type of claims, such as ineffective 20 assistance of counsel claims, must be raised and exhausted via state collateral proceedings. 21 McMonagle, 802 F.3d at 1099 n.1. 22 For Petitioner to exhaust his state court remedies for claims challenging the validity of his 23 misdemeanor, he must either present these claims through the direct review process or via state 24 collateral proceedings, depending on the nature of the claim.1 McMonagle, 802 F.3d at 1099 & 25 n.1. There is nothing in the record that indicates that Petitioner has done so. Presenting the claims 26 to the California Supreme Court via a Petition for Review to Exhaust State Court Remedies does 27 1 not exhaust Petitioner’s state court remedies. Id. at 1099. 2 Because the record does not indicate that Petitioner has exhausted his state court remedies, 3 || the Court DENIES Petitioner’s request to lift the stay and reopen this action. Dkt. No. 27. This 4 || denial is without prejudice to Petitioner filing a renewed request to lift the stay and reopen this 5 action after he has exhausted his state court remedies. To assist the Court in determining whether 6 || Petitioner has exhausted his state court remedies, Petitioner should attach a copy of the briefing 7 || that he submits to the state courts and a copy of the state court’s decision when filing any renewed 8 || request to lift the stay and reopen this action. 9 CONCLUSION 10 For the reasons set forth above, the Court DENIES Petitioner’s request to lift the stay and 11 reopen this action without prejudice to Petitioner filing a renewed request to lift the stay and 12 || reopen this action after he has exhausted his state court remedies, and attaching the documents 5 13 specified above. Dkt. No. 27. 14 This order terminates Dkt. No. 27. 3 15 IT IS SO ORDERED. a 16 || Dated: 6/17/2022 Alepwrel § Mbt) 8 HAYWOOD S. GILLIAM, JR. United States District Judge 19 20 21 22 23 24 25 26 27 28