(HC) Castillo v. Gamboa

• Court: District Court, E.D. California
• Decided: January 15, 2025
• Docket: 1:24-cv-01521
• Status: Unknown

Opinion

8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10

11 CONRAD CASTILLO, Case No. 1:24-cv-01521-SAB-HC

12 Petitioner, ORDER TO SHOW CAUSE WHY PETITION SHOULD NOT BE DISMISSED 13 v. FOR FAILURE TO EXHAUST STATE JUDICIAL REMEDIES 14 MARTIN GAMBOA,

15 Respondent.

16 17 Petitioner, represented by counsel, is a state prisoner proceeding with a petition for writ 18 of habeas corpus pursuant to 28 U.S.C. § 2254. 19 Rule 4 of the Rules Governing Section 2254 Cases requires preliminary review of a 20 habeas petition and allows a district court to dismiss a petition before the respondent is ordered 21 to file a response, if it “plainly appears from the petition and any attached exhibits that the 22 petitioner is not entitled to relief in the district court.” Rule 4, Rules Governing Section 2254 23 Cases in the United States District Courts, 28 U.S.C. foll. § 2254. 24 A petitioner in state custody who is proceeding with a petition for writ of habeas corpus 25 must exhaust state judicial remedies. 28 U.S.C. § 2254(b)(1). The exhaustion doctrine is based 26 on comity to the state court and gives the state court the initial opportunity to correct the state’s 27 alleged constitutional deprivations. Coleman v. Thompson, 501 U.S. 722, 731 (1991); Rose v. Lundy, 455 U.S. 509, 518 (1982). A petitioner can satisfy the exhaustion requirement by 1 providing the highest state court with a full and fair opportunity to consider each claim before 2 presenting it to the federal court. O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999); Duncan v. 3 Henry, 513 U.S. 364, 365 (1995); Picard v. Connor, 404 U.S. 270, 276 (1971). 4 If Petitioner has not sought relief in the California Supreme Court, the Court cannot 5 proceed to the merits of his claims. 28 U.S.C. § 2254(b)(1). The Court must dismiss without 6 prejudice a “mixed” petition containing both exhausted and unexhausted claims to give a 7 petitioner an opportunity to exhaust the claims if he can do so. See Lundy, 455 U.S. at 522. 8 However, a petitioner may, at his option, withdraw the unexhausted claims and go forward with 9 the exhausted claims. See Anthony v. Cambra, 236 F.3d 568, 574 (9th Cir. 2000) (“[D]istrict 10 courts must provide habeas litigants with the opportunity to amend their mixed petitions by 11 striking unexhausted claims as an alternative to suffering dismissal.”).1 A petitioner may also 12 move to withdraw the entire petition and return to federal court when he has finally exhausted his 13 state court remedies.2 Additionally, a petitioner may also move to stay and hold in abeyance the 14 petition while he exhausts his claims in state court. See Rhines v. Weber, 544 U.S. 269, 277 15 (2005); Kelly v. Small, 315 F.3d 1063, 1070–71 (9th Cir. 2002). 16 The instant petition raises three claims for relief. (ECF No 1 at 11–13.3) The petition 17 states that “Petitioner raised claims one and two in the California Court of Appeal and the 18 California Supreme Court,” but he “has not yet exhausted claim three.” (ECF No. 1-1 at 12.) The 19 petition states: “Along with the instant petition, Petitioner files an application for a stay pursuant 20 to Kelly v. Small, 315 F.3d 1063 (9th Cir. 2003), while he exhausts his remedies in state court 21 with respect to claim three.” (ECF No. 1-1 at 12.) However, no separate motion to stay has been 22 filed. 23 /// 24 ///

25 1 The Court notes that “prisoners filing mixed petitions may proceed with only the exhausted claims, but doing so risks subjecting later petitions that raise new claims to rigorous procedural obstacles,” such as the bar against second 26 or successive petitions. Burton v. Stewart, 549 U.S. 147, 154 (2007). 2 Although the limitations period tolls while a properly filed request for collateral review is pending in state court, 27 28 U.S.C. § 2244(d)(2), it does not toll for the time a federal habeas petition is pending in federal court. Duncan v. Walker, 533 U.S. 167, 181–82 (2001). 1 Accordingly, Petitioner is ORDERED to SHOW CAUSE within THIRTY (30) days 2 the date of service of this order why the petition should not be dismissed for failure to 3 | exhaust state judicial remedies. 4 Petitioner is forewarned that failure to follow this order may result in a recommendation 5 | for dismissal of the petition pursuant to Federal Rule of Civil Procedure 41(b) (a petitioner’s 6 | failure to prosecute or to comply with a court order may result in a dismissal of the action). 7 8 IT IS SO ORDERED. FA. Se 9 | Dated: _ January 15, 2025 STANLEY A. BOONE 10 United States Magistrate Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28