1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 CHARLES CHRISTOPHER REED, No. 2:21-cv-01402 GGH P 12 Petitioner, 13 v. ORDER 14 DANIEL CUEVA, 15 Respondent. 16 17 Petitioner is a state prisoner proceeding in pro se with a petition for writ of habeas corpus 18 pursuant to 28 U.S.C. § 2254, together with a request to proceed in forma pauperis. 19 Examination of the affidavit reveals petitioner is unable to afford the costs of this action. 20 Accordingly, leave to proceed in forma pauperis is granted. 28 U.S.C. § 1915(a). 21 The exhaustion of state court remedies is a prerequisite to the granting of a petition for 22 writ of habeas corpus. 28 U.S.C. § 2254(b)(1). If exhaustion is to be waived, it must 23 be waived explicitly by respondents’ counsel. 28 U.S.C. § 2254(b)(3).1 A waiver of exhaustion, 24 thus, may not be implied or inferred. A petitioner satisfies the exhaustion requirement by 25 providing the highest state court with a full and fair opportunity to consider all claims before 26 //// 27 1 A petition may be denied on the merits without exhaustion of state court remedies. 28 28 U.S.C. § 2254(b)(2). 1 presenting them to the federal court. Picard v. Connor, 404 U.S. 270, 276 (1971); Middleton v. 2 Cupp, 768 F.2d 1083, 1086 (9th Cir. 1985), cert. denied, 478 U.S. 1021 (1986). 3 The state court has had an opportunity to rule on the merits when the petitioner has fairly 4 presented the claim to that court. The fair presentation requirement is met where the petitioner 5 has described the operative facts and legal theory on which his claim is based. Picard, 404 U.S. at 6 277-78. Generally, it is “not enough that all the facts necessary to support the federal claim were 7 before the state courts . . . or that a somewhat similar state-law claim was made.” Anderson v. 8 Harless, 459 U.S. 4, 6 (1982). Instead, 9 [i]f state courts are to be given the opportunity to correct alleged violations of prisoners’ federal rights, they must surely be alerted to 10 the fact that the prisoners are asserting claims under the United States Constitution. If a habeas petitioner wishes to claim that an 11 evidentiary ruling at a state court trial denied him the due process of law guaranteed by the Fourteenth Amendment, he must say so, not 12 only in federal court, but in state court. 13 Duncan v. Henry, 513 U.S. 364, 365 (1995). Accordingly, “a claim for relief in habeas corpus 14 must include reference to a specific federal constitutional guarantee, as well as a statement of the 15 facts which entitle the petitioner to relief.” Gray v. Netherland, 518 U.S. 152, 116 S. Ct. 2074, 16 2081 (1996). The United States Supreme Court has held that a federal district court may not 17 entertain a petition for habeas corpus unless the petitioner has exhausted state remedies with 18 respect to each of the claims raised. Rose v. Lundy, 455 U.S. 509 (1982). A mixed petition 19 containing both exhausted and unexhausted claims must be dismissed. 20 Petitioner raises four grounds in his present federal habeas petition. Petitioner alleges the 21 following claims: (1) the trial court’s jury instructions lowered the prosecution’s burden of proof; 22 (2) the conviction was obtained in violation of petitioner’s privilege against self-incrimination; 23 (3) the prosecution failed to disclose favorable evidence to the defendant; and (4) the trial court 24 failed to exonerate defendant based on a lack of evidence. Petitioner admits grounds two, three 25 and four are unexhausted. ECF No. 1 at 6. Accordingly, the petition is a mixed petition containing 26 both exhausted and unexhausted claims. A mixed petition cannot be adjudicated on its merits but 27 should be dismissed for failure to fully exhaust. Rose, supra, 455 U.S. at 522. 28 //// 1 Although a district court must dismiss a habeas petition containing both unexhausted and 2 exhausted claims, petitioner may cure his failure to fully exhaust his habeas petition in three 3 alternative ways: 4 1. Petitioner may amend the petition to delete the unexhausted claims and proceed with 5 his exhausted claim only2; 6 2. Petitioner may ask the court to stay the action pursuant to Rhines v. Weber, 544 U.S. 7 269 in order to exhaust his claims; or 8 3. Petitioner may ask the court to stay the action pursuant to King v. Ryan, 564 F.3d 1133 9 (9th Cir. 2009) (citing Kelly v. Small, 315 F.3d 1063 (9th Cir. 2003) in order to exhaust his 10 claims. 11 Petitioner should take the foregoing principles into consideration if he seeks to file a 12 motion to stay. A motion for stay and abeyance pursuant to Rhines v. Weber is available so long 13 as (1) good cause is shown for a failure to have first exhausted the claims in state court; (2) the 14 claim or claims at issue potentially have merit; and (3) there has been no indication that petitioner 15 has been intentionally dilatory in pursuing the litigation. Rhines, supra, 544 U.S. at 277-78. 16 In the alternative, petitioner may request a stay pursuant to King v. Ryan. In King, the 17 Ninth Circuit held that in addition to the stay procedure authorized in Rhines, district courts also 18 have discretion to permit petitioners to follow the three-step stay-and-abeyance procedure 19 approved in Calderon v. U.S. Dist. Ct. (Taylor), 134 F.3d 981, 986 (9th Cir. 1998) and Kelly v. 20 Small. See King, 564 F.3d at 1135. Pursuant to the King/Kelly procedure, (1) a petitioner amends 21 his petition to delete any unexhausted claims; (2) the court stays and holds in abeyance the 22
23 2 Petitioner is cautioned that if he chooses to proceed on an amended petition raising only exhausted claims, he will risk forfeiting consideration of the unexhausted claims in this or any 24 other federal court. See McCleskey v. Zant, 499 U.S. 467 (1991); see also Rose, 455 U.S. at 520- 21; Rule 9(b), Rules Governing Section 2254 Cases. 25 Petitioner is further cautioned that the habeas corpus statute imposes a one-year statute of limitations for filing non-capital habeas corpus petitions in federal court. In most cases, the one 26 year period will start to run on the date on which the state court judgment became final by the 27 conclusion of direct review or the expiration of time for seeking direct review, although the statute of limitations is tolled while a properly filed application for state post-conviction or other 28 collateral review is pending. 28 U.S.C. § 2244(d).
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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 CHARLES CHRISTOPHER REED, No. 2:21-cv-01402 GGH P 12 Petitioner, 13 v. ORDER 14 DANIEL CUEVA, 15 Respondent. 16 17 Petitioner is a state prisoner proceeding in pro se with a petition for writ of habeas corpus 18 pursuant to 28 U.S.C. § 2254, together with a request to proceed in forma pauperis. 19 Examination of the affidavit reveals petitioner is unable to afford the costs of this action. 20 Accordingly, leave to proceed in forma pauperis is granted. 28 U.S.C. § 1915(a). 21 The exhaustion of state court remedies is a prerequisite to the granting of a petition for 22 writ of habeas corpus. 28 U.S.C. § 2254(b)(1). If exhaustion is to be waived, it must 23 be waived explicitly by respondents’ counsel. 28 U.S.C. § 2254(b)(3).1 A waiver of exhaustion, 24 thus, may not be implied or inferred. A petitioner satisfies the exhaustion requirement by 25 providing the highest state court with a full and fair opportunity to consider all claims before 26 //// 27 1 A petition may be denied on the merits without exhaustion of state court remedies. 28 28 U.S.C. § 2254(b)(2). 1 presenting them to the federal court. Picard v. Connor, 404 U.S. 270, 276 (1971); Middleton v. 2 Cupp, 768 F.2d 1083, 1086 (9th Cir. 1985), cert. denied, 478 U.S. 1021 (1986). 3 The state court has had an opportunity to rule on the merits when the petitioner has fairly 4 presented the claim to that court. The fair presentation requirement is met where the petitioner 5 has described the operative facts and legal theory on which his claim is based. Picard, 404 U.S. at 6 277-78. Generally, it is “not enough that all the facts necessary to support the federal claim were 7 before the state courts . . . or that a somewhat similar state-law claim was made.” Anderson v. 8 Harless, 459 U.S. 4, 6 (1982). Instead, 9 [i]f state courts are to be given the opportunity to correct alleged violations of prisoners’ federal rights, they must surely be alerted to 10 the fact that the prisoners are asserting claims under the United States Constitution. If a habeas petitioner wishes to claim that an 11 evidentiary ruling at a state court trial denied him the due process of law guaranteed by the Fourteenth Amendment, he must say so, not 12 only in federal court, but in state court. 13 Duncan v. Henry, 513 U.S. 364, 365 (1995). Accordingly, “a claim for relief in habeas corpus 14 must include reference to a specific federal constitutional guarantee, as well as a statement of the 15 facts which entitle the petitioner to relief.” Gray v. Netherland, 518 U.S. 152, 116 S. Ct. 2074, 16 2081 (1996). The United States Supreme Court has held that a federal district court may not 17 entertain a petition for habeas corpus unless the petitioner has exhausted state remedies with 18 respect to each of the claims raised. Rose v. Lundy, 455 U.S. 509 (1982). A mixed petition 19 containing both exhausted and unexhausted claims must be dismissed. 20 Petitioner raises four grounds in his present federal habeas petition. Petitioner alleges the 21 following claims: (1) the trial court’s jury instructions lowered the prosecution’s burden of proof; 22 (2) the conviction was obtained in violation of petitioner’s privilege against self-incrimination; 23 (3) the prosecution failed to disclose favorable evidence to the defendant; and (4) the trial court 24 failed to exonerate defendant based on a lack of evidence. Petitioner admits grounds two, three 25 and four are unexhausted. ECF No. 1 at 6. Accordingly, the petition is a mixed petition containing 26 both exhausted and unexhausted claims. A mixed petition cannot be adjudicated on its merits but 27 should be dismissed for failure to fully exhaust. Rose, supra, 455 U.S. at 522. 28 //// 1 Although a district court must dismiss a habeas petition containing both unexhausted and 2 exhausted claims, petitioner may cure his failure to fully exhaust his habeas petition in three 3 alternative ways: 4 1. Petitioner may amend the petition to delete the unexhausted claims and proceed with 5 his exhausted claim only2; 6 2. Petitioner may ask the court to stay the action pursuant to Rhines v. Weber, 544 U.S. 7 269 in order to exhaust his claims; or 8 3. Petitioner may ask the court to stay the action pursuant to King v. Ryan, 564 F.3d 1133 9 (9th Cir. 2009) (citing Kelly v. Small, 315 F.3d 1063 (9th Cir. 2003) in order to exhaust his 10 claims. 11 Petitioner should take the foregoing principles into consideration if he seeks to file a 12 motion to stay. A motion for stay and abeyance pursuant to Rhines v. Weber is available so long 13 as (1) good cause is shown for a failure to have first exhausted the claims in state court; (2) the 14 claim or claims at issue potentially have merit; and (3) there has been no indication that petitioner 15 has been intentionally dilatory in pursuing the litigation. Rhines, supra, 544 U.S. at 277-78. 16 In the alternative, petitioner may request a stay pursuant to King v. Ryan. In King, the 17 Ninth Circuit held that in addition to the stay procedure authorized in Rhines, district courts also 18 have discretion to permit petitioners to follow the three-step stay-and-abeyance procedure 19 approved in Calderon v. U.S. Dist. Ct. (Taylor), 134 F.3d 981, 986 (9th Cir. 1998) and Kelly v. 20 Small. See King, 564 F.3d at 1135. Pursuant to the King/Kelly procedure, (1) a petitioner amends 21 his petition to delete any unexhausted claims; (2) the court stays and holds in abeyance the 22
23 2 Petitioner is cautioned that if he chooses to proceed on an amended petition raising only exhausted claims, he will risk forfeiting consideration of the unexhausted claims in this or any 24 other federal court. See McCleskey v. Zant, 499 U.S. 467 (1991); see also Rose, 455 U.S. at 520- 21; Rule 9(b), Rules Governing Section 2254 Cases. 25 Petitioner is further cautioned that the habeas corpus statute imposes a one-year statute of limitations for filing non-capital habeas corpus petitions in federal court. In most cases, the one 26 year period will start to run on the date on which the state court judgment became final by the 27 conclusion of direct review or the expiration of time for seeking direct review, although the statute of limitations is tolled while a properly filed application for state post-conviction or other 28 collateral review is pending. 28 U.S.C. § 2244(d). 1 amended, fully exhausted petition, allowing the petitioner the opportunity to proceed to state 2 court to exhaust the deleted claims; and (3) the petitioner later amends his petition and re-attaches 3 the newly-exhausted claims to the original petition. Kelly, 315 F.3d at 1070–71. The King/Kelly 4 stay and abeyance procedure does not require a showing of good cause or that the claims be 5 potentially meritorious. However, unlike a Rhines stay, the King/Kelly procedure does not itself 6 toll the statute of limitations for the unexhausted claims. If the claims are not timely pursuant to 7 the one-year state of limitations set forth in 28 U.S.C. § 2244(d), including relation-back to an 8 exhausted claim, or statutorily or equitably tolled if otherwise untimely, petitioner’s King/Kelly 9 stay may create a fruitless result. 10 Nevertheless, due to the petitioner’s current mixed petition, petitioner will be granted 11 thirty days to inform the court which procedure he desires to follow. Petitioner is reminded that a 12 request for a stay must include satisfaction of the corresponding prerequisites set forth above. 13 Petitioner is warned that failure to choose or satisfy the necessary prerequisites for a request of a 14 stay, will result in a recommendation that this petition be dismissed for failure to exhaust state 15 court remedies. 16 In accordance with the above, IT IS HEREBY ORDERED that: 17 1. Petitioner is granted leave to proceed in forma pauperis; 18 2. Petitioner shall inform the court, within thirty days from the date of this order, whether he 19 will move to withdraw his unexhausted claims and proceed with his exhausted claims only, or, in the 20 alternative whether he shall seek a stay pursuant to Rhines v. Weber, 544 U.S. 269 (2005) or King v. 21 Ryan, 564 F.3d 1133 (9th Cir. 2009); and 22 3. Failure to comply with this order will result in a recommendation that this action be 23 dismissed without prejudice for failure to exhaust state court remedies. 24 Dated: August 30, 2021 /s/ Gregory G. Hollows 25 UNITED STATES MAGISTRATE JUDGE 26