1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 NICOLAS ANDRES MARROQUIN, Case No. 1:21-cv-01735-JLT-HBK (HC) 12 Petitioner, ORDER TO SHOW CAUSE WHY FIRST AMENDED PETITION SHOULD NOT BE 13 v. DISMISSED AS MIXED PETITION1 14 M.B. ATCHLEY, (Doc. Nos. 6)
15 Respondent. 16 17 18 19 Petitioner Nicolas Andres Marroquin, a state prisoner proceeding pro se, has pending a 20 First Amended Petition for writ of habeas corpus under 28 U.S.C. § 2254. (Doc. No. 6). On 21 April 27, 2022, Respondent filed a motion to dismiss the amended petition because it contains 22 unexhausted claims. (Doc. No. 12). As of the date of this order, Petitioner has not filed a 23 response to the motion, nor requested an extension of time to respond, and the time for doing so 24 has long expired. (See Doc. No. 7 at ¶ 3, advising Petitioner that he has thirty (30) days to file a 25 response if Respondent files motion to dismiss). Because the First Amended Petition contains 26 unexhausted claims, the Court orders Petitioner to show cause why his First Amended Petition 27 1 This matter was referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302 28 (E.D. Cal. 2022). 1 should not be dismissed as a mixed petition. 2 APPLICABLE LAW AND ANALYSIS 3 A petitioner in state custody who wishes to proceed on a federal petition for a writ of 4 habeas corpus must exhaust state judicial remedies. 28 U.S.C. § 2254(b)(1). Exhaustion is a 5 “threshold” matter that must be satisfied before the court can consider the merits of each claim. 6 Day v. McDonough, 547 U.S. 198, 205 (2006). The exhaustion doctrine is not a jurisdictional 7 issue but is based on comity to permit the state court the initial opportunity to resolve any alleged 8 constitutional deprivations. See Coleman v. Thompson, 501 U.S. 722, 731 (1991); Rose v. Lundy, 9 455 U.S. 509, 518 (1982). To satisfy the exhaustion requirement, petitioner must provide the 10 highest state court with a full and fair opportunity to consider each claim before presenting it to 11 the federal court. See O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999); Duncan v. Henry, 513 12 U.S. 364, 365 (1995). Exhaustion is determined on a claim-by-claim basis. Insyxieng-May v. 13 Morgan, 403 F.3d 657, 667 (9th Cir. 2005). And the burden of proving exhaustion rests with the 14 petitioner. Darr v. Burford, 339 U.S. 200, 218 (1950) (overruled in part on other grounds by Fay 15 v. Noia, 372 U.S. 391 (1963)). A failure to exhaust may only be excused where the petitioner 16 shows that “there is an absence of available State corrective process” or “circumstances exist that 17 render such process ineffective to protect the rights of the applicant.” 28 U.S.C. § 18 2254(b)(1)(B)(i)-(ii). 19 Petitioner raises three claims in his First Amended Petition: (1) the gang expert “lacked 20 experience” and his testimony was inadmissible hearsay; (2) the prosecution deprived him of his 21 right to due process by “violating multiple and excessive allegations and charges”; and (3) 22 cumulative errors. (Doc. No. 6 at 5-19). As noted by Respondent, Petitioner’s sole post- 23 conviction filing in the California Supreme Court was a petition for review raising one ground for 24 relief: “for the court to resolve a split among the Courts of Appeal as to whether the facts related 25 to predicate offenses are ‘case-specific’ for purposes of gang expert testimony.” (Doc. No. 13-3). 26 Assuming ground one is exhausted, Petitioner did not raise grounds two and three of the First 27 Amended Petition to the California Supreme Court. 28 Federal courts cannot consider petitions that contain both exhausted and unexhausted 1 claims, often referred to as “mixed” petitions. See Rose v. Lundy, 455 U.S. 509, 522 (1982) 2 (holding a district court must dismiss a federal habeas petition containing both unexhausted and 3 exhausted claims). The filing of a mixed petition renders it subject to dismissal on its face. Id. at 4 519. To remedy this problem, a petitioner may, at his option, withdraw the unexhausted claims 5 and go forward only with the exhausted claims. Anthony v. Cambra, 236 F.3d 568, 574 (9th Cir. 6 2000) (“district courts must provide habeas litigants with the opportunity to amend their mixed 7 petitions by striking unexhausted claims as an alternative to suffering dismissal.”). Alternatively 8 under certain circumstances and as long as adequately supported, a petitioner may seek leave to 9 amend or to seek a stay and abeyance of the federal habeas action while the petitioner exhausts 10 any unexhausted claims in state court. See Dixon v. Baker, 847 F.3d 714, at 719 (9th Cir. 2017) 11 (“we have repeatedly warned the district courts that they ‘may not dismiss a mixed petition 12 without giving the petitioner the opportunity to delete the unexhausted claims .... This warning is 13 compelled by the fact that, unless either a stay of the habeas proceedings or leave to delete the 14 unexhausted claims is granted, a federal habeas petitioner will lose the opportunity to have his 15 properly exhausted federal claims heard in federal court simply because they were submitted in a 16 mixed petition.”). 17 Two procedures are available to federal habeas petitioners who wish to proceed with 18 exhausted and unexhausted claims for relief: one provided for by Rhines v. Weber, 544 U.S. 269 19 (2005), and the other by Kelly v. Small, 315 F.3d 1063 (9th Cir. 2002). Under Rhines, stay and 20 abeyance is appropriate if “the petitioner had good cause for his failure to exhaust, his 21 unexhausted claims are potentially meritorious, and there is no indication that the petitioner 22 engaged in intentionally dilatory litigation tactics.” Rhines, 544 U.S. at 278; Bolin v. Baker, 994 23 F.3d 1154, 1156 (9th Cir. 2021). Under Kelly, “(1) a petitioner amends his petition to delete any 24 unexhausted claims, (2) the court stays and holds in abeyance the amended, fully exhausted 25 petition, allowing petitioner the opportunity to proceed to state court to exhaust the deleted 26 claims; and (3) the petitioner later amends his petition and re-attaches the newly exhausted claims 27 to the original petition.” See King v. Ryan, 564 F.3d 1133, 1135 (9th Cir. 2009). The Court notes 28 that the Kelly procedure is a riskier one for a habeas petitioner because it does not protect the 1 | unexhausted claims from becoming time-barred during the stay. See id.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 NICOLAS ANDRES MARROQUIN, Case No. 1:21-cv-01735-JLT-HBK (HC) 12 Petitioner, ORDER TO SHOW CAUSE WHY FIRST AMENDED PETITION SHOULD NOT BE 13 v. DISMISSED AS MIXED PETITION1 14 M.B. ATCHLEY, (Doc. Nos. 6)
15 Respondent. 16 17 18 19 Petitioner Nicolas Andres Marroquin, a state prisoner proceeding pro se, has pending a 20 First Amended Petition for writ of habeas corpus under 28 U.S.C. § 2254. (Doc. No. 6). On 21 April 27, 2022, Respondent filed a motion to dismiss the amended petition because it contains 22 unexhausted claims. (Doc. No. 12). As of the date of this order, Petitioner has not filed a 23 response to the motion, nor requested an extension of time to respond, and the time for doing so 24 has long expired. (See Doc. No. 7 at ¶ 3, advising Petitioner that he has thirty (30) days to file a 25 response if Respondent files motion to dismiss). Because the First Amended Petition contains 26 unexhausted claims, the Court orders Petitioner to show cause why his First Amended Petition 27 1 This matter was referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302 28 (E.D. Cal. 2022). 1 should not be dismissed as a mixed petition. 2 APPLICABLE LAW AND ANALYSIS 3 A petitioner in state custody who wishes to proceed on a federal petition for a writ of 4 habeas corpus must exhaust state judicial remedies. 28 U.S.C. § 2254(b)(1). Exhaustion is a 5 “threshold” matter that must be satisfied before the court can consider the merits of each claim. 6 Day v. McDonough, 547 U.S. 198, 205 (2006). The exhaustion doctrine is not a jurisdictional 7 issue but is based on comity to permit the state court the initial opportunity to resolve any alleged 8 constitutional deprivations. See Coleman v. Thompson, 501 U.S. 722, 731 (1991); Rose v. Lundy, 9 455 U.S. 509, 518 (1982). To satisfy the exhaustion requirement, petitioner must provide the 10 highest state court with a full and fair opportunity to consider each claim before presenting it to 11 the federal court. See O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999); Duncan v. Henry, 513 12 U.S. 364, 365 (1995). Exhaustion is determined on a claim-by-claim basis. Insyxieng-May v. 13 Morgan, 403 F.3d 657, 667 (9th Cir. 2005). And the burden of proving exhaustion rests with the 14 petitioner. Darr v. Burford, 339 U.S. 200, 218 (1950) (overruled in part on other grounds by Fay 15 v. Noia, 372 U.S. 391 (1963)). A failure to exhaust may only be excused where the petitioner 16 shows that “there is an absence of available State corrective process” or “circumstances exist that 17 render such process ineffective to protect the rights of the applicant.” 28 U.S.C. § 18 2254(b)(1)(B)(i)-(ii). 19 Petitioner raises three claims in his First Amended Petition: (1) the gang expert “lacked 20 experience” and his testimony was inadmissible hearsay; (2) the prosecution deprived him of his 21 right to due process by “violating multiple and excessive allegations and charges”; and (3) 22 cumulative errors. (Doc. No. 6 at 5-19). As noted by Respondent, Petitioner’s sole post- 23 conviction filing in the California Supreme Court was a petition for review raising one ground for 24 relief: “for the court to resolve a split among the Courts of Appeal as to whether the facts related 25 to predicate offenses are ‘case-specific’ for purposes of gang expert testimony.” (Doc. No. 13-3). 26 Assuming ground one is exhausted, Petitioner did not raise grounds two and three of the First 27 Amended Petition to the California Supreme Court. 28 Federal courts cannot consider petitions that contain both exhausted and unexhausted 1 claims, often referred to as “mixed” petitions. See Rose v. Lundy, 455 U.S. 509, 522 (1982) 2 (holding a district court must dismiss a federal habeas petition containing both unexhausted and 3 exhausted claims). The filing of a mixed petition renders it subject to dismissal on its face. Id. at 4 519. To remedy this problem, a petitioner may, at his option, withdraw the unexhausted claims 5 and go forward only with the exhausted claims. Anthony v. Cambra, 236 F.3d 568, 574 (9th Cir. 6 2000) (“district courts must provide habeas litigants with the opportunity to amend their mixed 7 petitions by striking unexhausted claims as an alternative to suffering dismissal.”). Alternatively 8 under certain circumstances and as long as adequately supported, a petitioner may seek leave to 9 amend or to seek a stay and abeyance of the federal habeas action while the petitioner exhausts 10 any unexhausted claims in state court. See Dixon v. Baker, 847 F.3d 714, at 719 (9th Cir. 2017) 11 (“we have repeatedly warned the district courts that they ‘may not dismiss a mixed petition 12 without giving the petitioner the opportunity to delete the unexhausted claims .... This warning is 13 compelled by the fact that, unless either a stay of the habeas proceedings or leave to delete the 14 unexhausted claims is granted, a federal habeas petitioner will lose the opportunity to have his 15 properly exhausted federal claims heard in federal court simply because they were submitted in a 16 mixed petition.”). 17 Two procedures are available to federal habeas petitioners who wish to proceed with 18 exhausted and unexhausted claims for relief: one provided for by Rhines v. Weber, 544 U.S. 269 19 (2005), and the other by Kelly v. Small, 315 F.3d 1063 (9th Cir. 2002). Under Rhines, stay and 20 abeyance is appropriate if “the petitioner had good cause for his failure to exhaust, his 21 unexhausted claims are potentially meritorious, and there is no indication that the petitioner 22 engaged in intentionally dilatory litigation tactics.” Rhines, 544 U.S. at 278; Bolin v. Baker, 994 23 F.3d 1154, 1156 (9th Cir. 2021). Under Kelly, “(1) a petitioner amends his petition to delete any 24 unexhausted claims, (2) the court stays and holds in abeyance the amended, fully exhausted 25 petition, allowing petitioner the opportunity to proceed to state court to exhaust the deleted 26 claims; and (3) the petitioner later amends his petition and re-attaches the newly exhausted claims 27 to the original petition.” See King v. Ryan, 564 F.3d 1133, 1135 (9th Cir. 2009). The Court notes 28 that the Kelly procedure is a riskier one for a habeas petitioner because it does not protect the 1 | unexhausted claims from becoming time-barred during the stay. See id. at 1140-41; see also 2 | Duncan, 533 U.S. at 178 (unlike the filing of a state habeas petition, the filing of a federal habeas 3 | petition does not toll the statute of limitations). 4 Accordingly it is ORDERED: 5 1. Petitioner must SHOW CAUSE why the First Amended Petition should not be 6 | dismissed as a mixed petition. Petitioner must deliver his response to the Show Cause Order to 7 | correctional officials for mailing no later than December 30, 2022. 8 2. In the alternative, by the same date, Petitioner shall file a notice to voluntarily 9 | dismiss his unexhausted claims (grounds two and three) or file a Second Amended Petition 10 | omitting his unexhausted claims (grounds two and three). Petitioner will then proceed only on his 11 | exhausted claim (ground one). 12 3. If appropriate, by the same date, Petitioner may file a motion to stay under Kelly 13 | or Rhines. 14 4. Petitioner is forewarned that failure to follow this order will result in a 15 | recommendation for dismissal of the petition as a mixed petition and/or for failure to prosecute or 16 || comply with a court order pursuant to Federal Rule of Civil Procedure 41(b). 17 | Dated: _ November 28, 2022 Mihaw. □□ fares Zackte 19 HELENA M. BARCH-KUCHTA UNITED STATES MAGISTRATE JUDGE 20 21 22 23 24 25 26 27 28