Hileberto Valtierra v. B. Baily

Opinion

7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9

10 HILEBERTO VALTIERRA, Case No. 1:25-cv-00965-JLT-EPG-HC

11 Petitioner, FINDINGS AND RECOMMENDATION TO DENY RESPONDENT’S MOTION TO 12 v. DISMISS, DISMISS UNEXHAUSTED CLAIM, AND ALLOW PETITIONER TO 13 B. BAILY, PROCEED WITH EXHAUSTED CLAIMS

14 Respondent. (ECF No. 18)

15 16 Petitioner Hileberto Valtierra is a state prisoner proceeding pro se with a petition for writ 17 of habeas corpus pursuant to 28 U.S.C. § 2254. For the reasons stated herein, the undersigned 18 recommends denying Respondent’s motion to dismiss, dismissing unexhausted Ground Thirteen, 19 and allowing Petitioner to proceed with his exhausted claims. 20 I. 21 BACKGROUND 22 On August 5, 2025, Petitioner filed a petition for writ of habeas corpus raising fourteen 23 grounds for relief. (ECF No. 1.) On October 15, 2025, Respondent filed a motion to dismiss the 24 petition because Petitioner failed to exhaust Ground Thirteen. (ECF No. 18.) On October 27, 25 2025, Petitioner filed an opposition, requesting the Court to “allow Petitioner to strike ground 26 thirteen from his federal petition in order to continue forward with his other thirteen fully 27 exhausted claims.” (ECF No. 19 at 1.1) 1 II. 2 DISCUSSION 3 A petitioner in state custody who is proceeding with a petition for writ of habeas corpus 4 must exhaust state judicial remedies. 28 U.S.C. § 2254(b)(1). The exhaustion doctrine is based 5 on comity to the state court and gives the state court the initial opportunity to correct the state’s 6 alleged constitutional deprivations. Coleman v. Thompson, 501 U.S. 722, 731 (1991); Rose v. 7 Lundy, 455 U.S. 509, 518 (1982). A petitioner can satisfy the exhaustion requirement by 8 providing the highest state court with a full and fair opportunity to consider each claim before 9 presenting it to the federal court. O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999); Duncan v. 10 Henry, 513 U.S. 364, 365 (1995); Picard v. Connor, 404 U.S. 270, 276 (1971). 11 In the petition, Petitioner raises fourteen grounds for relief. Respondent asserts that 12 Petitioner has failed to exhaust Ground Thirteen. (ECF No. 18 at 2–3.) Petitioner does not 13 dispute that Ground Thirteen is unexhausted. (ECF No. 19.) 14 “Federal courts may not adjudicate mixed habeas petitions, that is, those containing both 15 exhausted and unexhausted claims.” Henderson v. Johnson, 710 F.3d 872, 873 (9th Cir. 2013). 16 The Court must dismiss without prejudice a mixed petition containing both exhausted and 17 unexhausted claims to give a petitioner an opportunity to exhaust the claims if he can do so. 18 Lundy, 455 U.S. at 522. However, a petitioner may, at his option, withdraw the unexhausted 19 claims and go forward with the exhausted claims. See Anthony v. Cambra, 236 F.3d 568, 574 20 (9th Cir. 2000) (“[D]istrict courts must provide habeas litigants with the opportunity to amend 21 their mixed petitions by striking unexhausted claims as an alternative to suffering dismissal.”)2 22 As noted above, Petitioner has elected to strike unexhausted Ground Thirteen and go 23 forward with the remaining exhausted claims for relief. (ECF No. 19.) As Petitioner has 24 presented the Court with a mixed petition and has elected not to stay the case, the Court “should 25 allow the petitioner to delete the unexhausted claims and to proceed with the exhausted claims if 26 dismissal of the entire petition would unreasonably impair the petitioner’s right to obtain federal

27 2 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 1 | relief.” Rhines v. Weber, 544 U.S. 269, 278 (2005). Accord Dixon v. Baker, 847 F.3d 714, 719 2 | (9th Cir. 2017). 3 Hil. 4 RECOMMENDATION 5 Accordingly, the undersigned HEREBY RECOMMENDS that: 6 1. Respondent’s motion to dismiss (ECF No. 18) be DENIED; 7 2. Ground Thirteen be DISMISSED as unexhausted; and 8 3. Petitioner be allowed to proceed with his exhausted claims. 9 This Findings and Recommendation is submitted to the assigned United States District 10 | Court Judge, pursuant to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of the Local 11 | Rules of Practice for the United States District Court, Eastern District of California. Within 12 | FOURTEEN (14) days after service of the Findings and Recommendation, any party may file 13 | written objections, no longer than fifteen (15) pages, including exhibits, with the Court and 14 | serve a copy on all parties. Such a document should be captioned “Objections to Magistrate 15 | Judge’s Findings and Recommendation.” Replies to the objections shall be served and filed 16 | within fourteen (14) days after service of the objections. The assigned United States District 17 | Court Judge will then review the Magistrate Judge’s ruling pursuant to 28 U.S.C. § 636(b)(1)(C). 18 | The parties are advised that failure to file objections within the specified time may waive the 19 | right to appeal the District Court’s order. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 20 | 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). >] IT IS SO ORDERED.

Dated: _ January 27, 2026 [Je heey — 3 UNITED STATES MAGISTRATE JUDGE 24 25 26 27 28