1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 DARRYL DUNSMORE, Case No.: 3:21-cv-2125-CAB-RBB 11
Petitioner, 12 ORDER: v.
13 (1) GRANTING MOTION TO ROBERT BURTON, Warden, 14 PROCEED IN FORMA PAUPERIS; Respondent. 15 (2) DISMISSING CASE WITHOUT
16 PREJUDICE AND WITH LEAVE TO AMEND 17
18 On December 21, 2021, Petitioner, a state prisoner proceeding pro se, filed a Petition 19 for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. ECF No. 1. Petitioner failed to 20 either pay the $5.00 filing fee or move to proceed in forma pauperis, and the Court 21 dismissed the case without prejudice. See Rule 3(a), 28 U.S.C. foll. § 2254; ECF No. 2. 22 Petitioner was given until April 11, 2022 to either pay the $5.00 filing fee or file a Motion 23 to Proceed in Forma Pauperis together with adequate proof of his inability to pay the fee. 24 ECF No. 2. On February 28, 2022, Petitioner filed a Motion to Proceed in Forma Pauperis. 25 ECF No. 3. 26 MOTION TO PROCEED IN FORM PAUPERIS 27 Petitioner has provided a prison certificate which shows Petitioner has $0.00 on 28 account at the California correctional institution in which he is presently confined. 1 Petitioner cannot afford the $5.00 filing fee. Thus, the Court GRANTS Petitioner’s 2 application to proceed in forma pauperis, and allows Petitioner to prosecute the above- 3 referenced action without being required to prepay fees or costs and without being required 4 to post security. The Clerk of the Court shall file the Petition for Writ of Habeas Corpus 5 without prepayment of the filing fee. 6 FAILURE TO STATE A COGNIZABLE CLAIM ON HABEAS CORPUS 7 Upon review of the Petition, it appears to the Court that a Petition for Writ of Habeas 8 Corpus brought pursuant to § 2254 is not the proper vehicle for Ground Two of the Petition. 9 In Ground Two, Petitioner claims he is the victim of “ADA discrimination” because he has 10 been denied access to programs based on his disability. ECF No. 1 at 7. This claim is not 11 cognizable on habeas because it does not challenge the constitutional validity or duration 12 of confinement. See 28 U.S.C. § 2254(a); Preiser v. Rodriguez, 411 U.S. 475, 500 (1973); 13 Heck v. Humphrey, 512 U.S. 477, 480-85 (1994). 14 Challenges to the fact or duration of confinement are brought by petition for a writ 15 of habeas corpus, pursuant to 28 U.S.C. § 2254; challenges to conditions of confinement 16 are brought pursuant to the Civil Rights Act, 42 U.S.C. § 1983. See Preiser, 411 U.S. at 17 488-500. When a state prisoner is challenging the very fact or duration of his physical 18 imprisonment, and the relief he seeks is a determination that he is entitled to immediate 19 release or a speedier release from that imprisonment, his sole federal remedy is a writ of 20 habeas corpus. Id. at 500. On the other hand, a § 1983 action is a proper remedy for a state 21 prisoner who is making a constitutional challenge to the conditions of his prison life, but 22 not to the fact or length of his custody. Id. at 499; McIntosh v. United States Parole 23 Comm’n, 115 F.3d 809, 811-12 (10th Cir. 1997). It appears that as to Ground Two of the 24 Petition, Petitioner challenges the conditions of his prison life, but not the fact or length of 25 his custody. Thus, Petitioner has not stated a cognizable habeas claim pursuant to § 2254 26 as to Ground Two. 27 / / / 28 / / / 1 FAILURE TO ALLEGE EXHAUSTION OF STATE COURT REMEDIES 2 AS TO ALL CLAIMS IN THE PETITION 3 In addition, the Petition appears to contain both exhausted and unexhausted claims. 4 Habeas petitioners who wish to challenge either their state court conviction or the length 5 of their confinement in state prison, must first exhaust state judicial remedies. 28 U.S.C. 6 § 2254(b), (c); Granberry v. Greer, 481 U.S. 129, 133–34 (1987). To exhaust state judicial 7 remedies, a California state prisoner must present the California Supreme Court with a fair 8 opportunity to rule on the merits of every issue raised in his or her federal habeas petition. 9 28 U.S.C. § 2254(b), (c); Granberry, 481 U.S. at 133–34. Moreover, to properly exhaust 10 state court remedies a petitioner must allege, in state court, how one or more of his or her 11 federal rights have been violated. The Supreme Court in Duncan v. Henry, 513 U.S. 364 12 (1995) reasoned: “If state courts are to be given the opportunity to correct alleged violations 13 of prisoners’ federal rights, they must surely be alerted to the fact that the prisoners are 14 asserting claims under the United States Constitution.” Id. at 365–66 (emphasis added). 15 For example, “[i]f a habeas petitioner wishes to claim that an evidentiary ruling at a state 16 court trial denied him [or her] the due process of law guaranteed by the Fourteenth 17 Amendment, he [or she] must say so, not only in federal court, but in state court.” Id. at 18 366 (emphasis added). 19 Petitioner has failed to allege that he has exhausted Ground Three by presenting it 20 to the California Supreme Court. See ECF No. 1 at 8. Petitioner has therefore filed a 21 “mixed” petition; that is, one which presents both exhausted and unexhausted claims. In 22 Rose v. Lundy, 455 U.S. 509 (1982), the United States Supreme Court held that a mixed 23 petition is subject to dismissal because it violates the “total exhaustion rule” required in 24 habeas petitions brought pursuant to § 2254, but that a petitioner must be permitted an 25 opportunity to cure that defect prior to dismissal. Id. at 514–20. 26 Having preliminarily determined the Petition contains unexhausted and exhausted 27 claims, the Court notifies Petition of his options. 28 / / / 1 A. First Option: Allege Exhaustion 2 Petitioner may file further papers with this Court to demonstrate that he has in fact 3 exhausted the claim which appears to be unexhausted. If Petitioner chooses this option, his 4 papers are due no later than May 3, 2022. Respondent may file a reply by June 3, 2022. 5 B. Second Option: Voluntarily Dismiss the Petition 6 Petitioner may voluntarily dismiss his entire federal petition and return to state court 7 to exhaust any unexhausted claims. He may thereafter file a new federal petition in this 8 Court containing only exhausted claims. See Rose, 455 U.S. at 520–21 (stating that a 9 petitioner who files a mixed petition may dismiss his petition to “return[] to state court to 10 exhaust his claims”). If Petitioner chooses this option, he must file a pleading notifying the 11 Court of his intent to voluntarily dismiss his petition no later than May 3, 2022. 12 Petitioner is cautioned that any new federal petition must be filed before expiration 13 of the one-year statute of limitations. Ordinarily, a petitioner has one year from when his 14 conviction became final to file his federal petition, unless he can show that statutory or 15 equitable “tolling” applies. Duncan v.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 DARRYL DUNSMORE, Case No.: 3:21-cv-2125-CAB-RBB 11
Petitioner, 12 ORDER: v.
13 (1) GRANTING MOTION TO ROBERT BURTON, Warden, 14 PROCEED IN FORMA PAUPERIS; Respondent. 15 (2) DISMISSING CASE WITHOUT
16 PREJUDICE AND WITH LEAVE TO AMEND 17
18 On December 21, 2021, Petitioner, a state prisoner proceeding pro se, filed a Petition 19 for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. ECF No. 1. Petitioner failed to 20 either pay the $5.00 filing fee or move to proceed in forma pauperis, and the Court 21 dismissed the case without prejudice. See Rule 3(a), 28 U.S.C. foll. § 2254; ECF No. 2. 22 Petitioner was given until April 11, 2022 to either pay the $5.00 filing fee or file a Motion 23 to Proceed in Forma Pauperis together with adequate proof of his inability to pay the fee. 24 ECF No. 2. On February 28, 2022, Petitioner filed a Motion to Proceed in Forma Pauperis. 25 ECF No. 3. 26 MOTION TO PROCEED IN FORM PAUPERIS 27 Petitioner has provided a prison certificate which shows Petitioner has $0.00 on 28 account at the California correctional institution in which he is presently confined. 1 Petitioner cannot afford the $5.00 filing fee. Thus, the Court GRANTS Petitioner’s 2 application to proceed in forma pauperis, and allows Petitioner to prosecute the above- 3 referenced action without being required to prepay fees or costs and without being required 4 to post security. The Clerk of the Court shall file the Petition for Writ of Habeas Corpus 5 without prepayment of the filing fee. 6 FAILURE TO STATE A COGNIZABLE CLAIM ON HABEAS CORPUS 7 Upon review of the Petition, it appears to the Court that a Petition for Writ of Habeas 8 Corpus brought pursuant to § 2254 is not the proper vehicle for Ground Two of the Petition. 9 In Ground Two, Petitioner claims he is the victim of “ADA discrimination” because he has 10 been denied access to programs based on his disability. ECF No. 1 at 7. This claim is not 11 cognizable on habeas because it does not challenge the constitutional validity or duration 12 of confinement. See 28 U.S.C. § 2254(a); Preiser v. Rodriguez, 411 U.S. 475, 500 (1973); 13 Heck v. Humphrey, 512 U.S. 477, 480-85 (1994). 14 Challenges to the fact or duration of confinement are brought by petition for a writ 15 of habeas corpus, pursuant to 28 U.S.C. § 2254; challenges to conditions of confinement 16 are brought pursuant to the Civil Rights Act, 42 U.S.C. § 1983. See Preiser, 411 U.S. at 17 488-500. When a state prisoner is challenging the very fact or duration of his physical 18 imprisonment, and the relief he seeks is a determination that he is entitled to immediate 19 release or a speedier release from that imprisonment, his sole federal remedy is a writ of 20 habeas corpus. Id. at 500. On the other hand, a § 1983 action is a proper remedy for a state 21 prisoner who is making a constitutional challenge to the conditions of his prison life, but 22 not to the fact or length of his custody. Id. at 499; McIntosh v. United States Parole 23 Comm’n, 115 F.3d 809, 811-12 (10th Cir. 1997). It appears that as to Ground Two of the 24 Petition, Petitioner challenges the conditions of his prison life, but not the fact or length of 25 his custody. Thus, Petitioner has not stated a cognizable habeas claim pursuant to § 2254 26 as to Ground Two. 27 / / / 28 / / / 1 FAILURE TO ALLEGE EXHAUSTION OF STATE COURT REMEDIES 2 AS TO ALL CLAIMS IN THE PETITION 3 In addition, the Petition appears to contain both exhausted and unexhausted claims. 4 Habeas petitioners who wish to challenge either their state court conviction or the length 5 of their confinement in state prison, must first exhaust state judicial remedies. 28 U.S.C. 6 § 2254(b), (c); Granberry v. Greer, 481 U.S. 129, 133–34 (1987). To exhaust state judicial 7 remedies, a California state prisoner must present the California Supreme Court with a fair 8 opportunity to rule on the merits of every issue raised in his or her federal habeas petition. 9 28 U.S.C. § 2254(b), (c); Granberry, 481 U.S. at 133–34. Moreover, to properly exhaust 10 state court remedies a petitioner must allege, in state court, how one or more of his or her 11 federal rights have been violated. The Supreme Court in Duncan v. Henry, 513 U.S. 364 12 (1995) reasoned: “If state courts are to be given the opportunity to correct alleged violations 13 of prisoners’ federal rights, they must surely be alerted to the fact that the prisoners are 14 asserting claims under the United States Constitution.” Id. at 365–66 (emphasis added). 15 For example, “[i]f a habeas petitioner wishes to claim that an evidentiary ruling at a state 16 court trial denied him [or her] the due process of law guaranteed by the Fourteenth 17 Amendment, he [or she] must say so, not only in federal court, but in state court.” Id. at 18 366 (emphasis added). 19 Petitioner has failed to allege that he has exhausted Ground Three by presenting it 20 to the California Supreme Court. See ECF No. 1 at 8. Petitioner has therefore filed a 21 “mixed” petition; that is, one which presents both exhausted and unexhausted claims. In 22 Rose v. Lundy, 455 U.S. 509 (1982), the United States Supreme Court held that a mixed 23 petition is subject to dismissal because it violates the “total exhaustion rule” required in 24 habeas petitions brought pursuant to § 2254, but that a petitioner must be permitted an 25 opportunity to cure that defect prior to dismissal. Id. at 514–20. 26 Having preliminarily determined the Petition contains unexhausted and exhausted 27 claims, the Court notifies Petition of his options. 28 / / / 1 A. First Option: Allege Exhaustion 2 Petitioner may file further papers with this Court to demonstrate that he has in fact 3 exhausted the claim which appears to be unexhausted. If Petitioner chooses this option, his 4 papers are due no later than May 3, 2022. Respondent may file a reply by June 3, 2022. 5 B. Second Option: Voluntarily Dismiss the Petition 6 Petitioner may voluntarily dismiss his entire federal petition and return to state court 7 to exhaust any unexhausted claims. He may thereafter file a new federal petition in this 8 Court containing only exhausted claims. See Rose, 455 U.S. at 520–21 (stating that a 9 petitioner who files a mixed petition may dismiss his petition to “return[] to state court to 10 exhaust his claims”). If Petitioner chooses this option, he must file a pleading notifying the 11 Court of his intent to voluntarily dismiss his petition no later than May 3, 2022. 12 Petitioner is cautioned that any new federal petition must be filed before expiration 13 of the one-year statute of limitations. Ordinarily, a petitioner has one year from when his 14 conviction became final to file his federal petition, unless he can show that statutory or 15 equitable “tolling” applies. Duncan v. Walker, 533 U.S. 167, 176 (2001); 28 U.S.C. 16 § 2244(d).1 The statute of limitations does not run while a properly filed state habeas corpus 17
18 1 28 U.S.C. § 2244 (d) provides: 19 (1) A 1-year period of limitation shall apply to an application for a writ of habeas 20 corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of— 21 (A) the date on which the judgment became final by the conclusion of direct 22 review or the expiration of the time for seeking such review;
23 (B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, 24 if the applicant was prevented from filing by such State action;
25 (C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by 26 the Supreme Court and made retroactively applicable to cases on collateral review; or 27 (D) the date on which the factual predicate of the claim or claims presented 28 could have been discovered through the exercise of due diligence. 1 petition is pending. 28 U.S.C. § 2244(d)(2); see Nino v. Galaza, 183 F.3d 1003, 1006 (9th 2 Cir. 1999); but see Artuz v. Bennett, 531 U.S. 4, 8 (2000) (holding that “an application is 3 ‘properly filed’ when its delivery and acceptance [by the appropriate court officer for 4 placement into the record] are in compliance with the applicable laws and rules governing 5 filings.”); Bonner v. Carey, 425 F.3d 1145, 1149 (9th Cir. 2005) (holding that a state 6 application for post-conviction relief which is ultimately dismissed as untimely was neither 7 “properly filed” nor “pending” while it was under consideration by the state court, and 8 therefore does not toll the statute of limitations), as amended 439 F.3d 993. However, 9 absent some other basis for tolling, the statute of limitations continues to run while a federal 10 habeas petition is pending. Duncan, 533 U.S. at 181-82. 11 C. Third Option: Formally Abandon Unexhausted Claim 12 Petitioner may formally abandon his unexhausted claim and proceed with his 13 exhausted ones. See Rose, 455 U.S. at 510, 520–21 (stating that a petitioner who files a 14 mixed petition may “resubmit[] the habeas petition to present only exhausted claims”). If 15 Petitioner chooses this option, he must file a pleading with this Court no later than May 3, 16 2022. Respondent may file a reply by June 3, 2022. 17 Petitioner is cautioned that once he abandons his unexhausted claim, he may lose the 18 ability to ever raise it in federal court. See Slack v. McDaniel, 529 U.S. 473, 488 (2000) 19 (stating that a court’s ruling on the merits of claims presented in a first § 2254 petition 20 renders any later petition successive); see also 28 U.S.C. § 2244 (a)–(b).2 21
22 (2) The time during which a properly filed application for State post-conviction or 23 other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection. 24 2 28 U.S.C. § 2244(b)(2) provides that a claim presented in a second or successive habeas corpus 25 application under § 2254 shall be dismissed unless:
26 (A) the applicant shows that the claim relies on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was 27 previously unavailable; or
28 (B) (i) the factual predicate for the claim could not have been discovered 1 D. Fourth Option: File a Motion to Stay the Federal Proceedings 2 Petitioner may, along with a First Amended Petition, file a motion to stay this federal 3 proceeding while he returns to state court to exhaust his unexhausted claim. There are two 4 methods potentially available to Petitioner, the “stay and abeyance” procedure and the 5 “withdrawal and abeyance” procedure. 6 If Petitioner wishes to use the “stay and abeyance” procedure he should ask the Court 7 to stay his mixed petition while he returns to state court to exhaust. Under this procedure 8 he must demonstrate there are arguably meritorious claims which he wishes to return to 9 state court to exhaust, that he is diligently pursuing his state court remedies with respect to 10 those claims, and that good cause exists for his failure to timely exhaust his state court 11 remedies. Rhines v. Webber, 544 U.S. 269, 277–78 (2005). 12 If Petitioner wishes to use the “withdrawal and abeyance” procedure, he must 13 voluntarily withdraw his unexhausted claim, ask the Court to stay the proceedings and hold 14 the fully-exhausted petition in abeyance while he returns to state court to exhaust, and then 15 seek permission to amend his petition to include the newly exhausted claims after 16 exhaustion is complete. King v. Ryan, 564 F.3d. 1133, 1135 (9th Cir. 2009). Although 17 under this procedure Petitioner is not required to demonstrate good cause for his failure to 18 timely exhaust, the newly exhausted claims must be either timely under the statute of 19 limitations or “relate back” to the claims in the fully-exhausted petition, that is, they must 20 share a “common core of operative facts” with the previously exhausted claims. King, 564 21 F.3d at 1141, quoting Mayle v. Felix, 545 U.S. 644, 659 (2005). 22 If Petitioner choses this fourth option, he must file a pleading with this Court no later 23 than May 3, 2022. Respondent may file a reply by June 3, 2022. 24 25
26 (ii) the facts underlying the claim, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing 27 evidence that, but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense. 28 1 CONCLUSION AND ORDER 2 For the foregoing reasons, the Court GRANTS Petitioner’s Motion to Proceed in 3 ||Forma Pauperis and DISMISSES this case without prejudice. If Petitioner wishes to 4 || proceed with this case, he must, no later than May 3, 2022 choose one of the options 5 || outlined above by filing a pleading which either alleges exhaustion (Option 1), voluntarily 6 || dismisses his petition (Option 2), dismisses his unexhausted claims (Option 3), or requests 7 stay (Option 4). 8 Petitioner is cautioned that if he fails to respond to this Order, the Petition will 9 ||remain dismissed without prejudice.' See Rose, 455 U.S. at 522. The Clerk of Court shall 10 a blank Amended Petition form to Petitioner along with a copy of this Order. 11 IT IS SO ORDERED. 12 || Dated: March 4, 2022 € ZL 13 Hon. Cathy Ann Bencivengo 14 United States District Judge 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Although the dismissal is “without prejudice,” Petitioner is again cautioned that any later federal petition may be barred by the statute of limitations. See 28 U.S.C. § 2244(d)(1)-(2).