1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT 10 SOUTHERN DISTRICT OF CALIFORNIA 11 12 ISRAEL ONTIVEROS Case No.: 19cv2072-MMA (RBM)
13 Petitioner, ORDER DISMISSING PETITION 14 v. WITHOUT PREJUDICE AND NOTIFYING PETITIONER OF 15 JARED D. LOZANO, OPTIONS TO AVOID FUTURE 16 Respondent. DISMISSAL OF MIXED PETITION 17 18 Petitioner, a state prisoner proceeding pro se, has submitted a Petition for a Writ of 19 Habeas Corpus pursuant to 28 U.S.C. § 2254, but has neither paid the $5.00 filing fee nor 20 submitted a request to proceed in forma pauperis. ECF No. 1. The Petition is subject to 21 dismissal for failure to satisfy the filing fee requirement and failure to allege exhaustion of 22 state court remedies as to every claim. 23 FILING FEE REQUIREMENT 24 Because this Court cannot proceed until Petitioner has either paid the $5.00 filing 25 fee or qualified to proceed in forma pauperis, the Court DISMISSES the case without 26 prejudice. To have this case reopened, Petitioner must submit, no later than December 27 31, 2019, a copy of this Order with the $5.00 fee or with adequate proof of his inability to 28 pay the fee. 1 EXHAUSTION OF STATE COURT REMEDIES 2 The Petition presents eleven claims. ECF No. 1 at 6–50. Petitioner indicates that he 3 has only presented claim one to the state supreme court and has not presented the remaining 4 claims to that court. Id. 5 Habeas petitioners who wish to challenge either their state court conviction or the 6 length of their confinement in state prison must first exhaust state judicial remedies. 28 7 U.S.C. § 2254(b), (c); Granberry v. Greer, 481 U.S. 129, 133–34 (1987). To exhaust state 8 judicial remedies, a California state prisoner must present the California Supreme Court 9 with a fair opportunity to rule on the merits of every issue raised in his or her federal habeas 10 petition. 28 U.S.C. § 2254(b), (c); Granberry, 481 U.S. at 133–34. Moreover, to properly 11 exhaust state court remedies a petitioner must allege, in state court, how one or more of his 12 or her federal rights have been violated. The Supreme Court in Duncan v. Henry, 513 U.S. 13 364 (1995) reasoned: “If state courts are to be given the opportunity to correct alleged 14 violations of prisoners’ federal rights, they must surely be alerted to the fact that the 15 prisoners are asserting claims under the United States Constitution.” Id. at 365–66 16 (emphasis added). For example, “[i]f a habeas petitioner wishes to claim that an 17 evidentiary ruling at a state court trial denied him [or her] the due process of law guaranteed 18 by the Fourteenth Amendment, he [or she] must say so, not only in federal court, but in 19 state court.” Id. at 366 (emphasis added). The burden of proving a claim has been 20 exhausted lies with Petitioner. Cartwright v. Cupp, 650 F.2d 1103, 1104 (9th Cir. 1981). 21 “[F]ederal district courts must dismiss mixed habeas petitions.” Pliler v. Ford, 542 22 U.S. 225, 230 (2004) (citing Rose v. Lundy, 455 U.S. 509, 510, 522 (1982)). As set forth 23 above, the Petition is dismissed for failure to satisfy the filing fee requirement. However, 24 anticipating that Petitioner may pay the filing fee or be granted leave to proceed in forma 25 pauperis and have the case reopened, the Petition will remain subject to dismissal as 26 containing one exhausted claim and ten unexhausted claims. The Court hereby notifies 27 Petitioner of his options to avoid a future dismissal of a mixed petition for failing to allege 28 complete exhaustion of state court remedies if he satisfies the filing fee requirement. 1 i) First Option: Allege Complete Exhaustion 2 Petitioner may allege he has in fact exhausted state court remedies as to all claims. 3 ii) Second Option: Voluntarily Dismiss the Petition 4 Petitioner may move to voluntarily dismiss his entire federal petition and return to 5 state court to exhaust his unexhausted claims. He may then file a new federal petition 6 containing only exhausted claims. See Rose v. Lundy, 455 U.S. 509, 510, 520–21 (stating 7 that a petitioner who files a mixed petition may dismiss his petition to “return[] to state 8 court to exhaust his claims.”) Petitioner is cautioned that any new federal petition must be 9 filed before expiration of the one-year statute of limitations. Ordinarily, a petitioner has 10 one year from when his conviction became final to file his federal petition, unless he can 11 show that statutory or equitable “tolling” applies. Duncan v. Walker, 533 U.S. 167, 176 12 (2001); 28 U.S.C. § 2244(d).1 13 The statute of limitations does not run while a properly filed state habeas corpus 14 petition is pending in state court. 28 U.S.C. § 2244(d)(2); see Nino v. Galaza, 183 F.3d 15 16 17 1 28 U.S.C. § 2244 (d) provides: (1) A 1-year period of limitation shall apply to an application for a writ of 18 habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of-- 19 (A) the date on which the judgment became final by the conclusion of direct 20 review or the expiration of the time for seeking such review;
21 (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, 22 if the applicant was prevented from filing by such State action;
23 (C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme 24 Court and made retroactively applicable to cases on collateral review; or
25 (D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence. 26 (2) The time during which a properly filed application for State post- 27 conviction or other collateral review with respect to the pertinent judgement or claim is pending shall not be counted toward any period of limitation under 28 this subsection. 1 1003, 1006 (9th Cir. 1999) (“[W]e hold that the statute of limitations is tolled from the time 2 the first state habeas petition is filed until the California Supreme Court rejects the 3 petitioner’s final collateral challenge.”), overruled in part by Carey v. Saffold, 536 U.S. 4 214, 225–26 (2002) (holding that if a petitioner unreasonably delays filing a habeas petition 5 in a higher California court after a denial in a lower court, he is not entitled to statutory 6 tolling during the gap between those petitions). But see Artuz v. Bennett, 531 U.S. 4, 8 7 (2000) (holding that “an application is ‘properly filed’ when its delivery and acceptance 8 [by the appropriate court officer for placement into the record] are in compliance with the 9 applicable laws and rules governing filings.”); Bonner v. Carey,
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1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT 10 SOUTHERN DISTRICT OF CALIFORNIA 11 12 ISRAEL ONTIVEROS Case No.: 19cv2072-MMA (RBM)
13 Petitioner, ORDER DISMISSING PETITION 14 v. WITHOUT PREJUDICE AND NOTIFYING PETITIONER OF 15 JARED D. LOZANO, OPTIONS TO AVOID FUTURE 16 Respondent. DISMISSAL OF MIXED PETITION 17 18 Petitioner, a state prisoner proceeding pro se, has submitted a Petition for a Writ of 19 Habeas Corpus pursuant to 28 U.S.C. § 2254, but has neither paid the $5.00 filing fee nor 20 submitted a request to proceed in forma pauperis. ECF No. 1. The Petition is subject to 21 dismissal for failure to satisfy the filing fee requirement and failure to allege exhaustion of 22 state court remedies as to every claim. 23 FILING FEE REQUIREMENT 24 Because this Court cannot proceed until Petitioner has either paid the $5.00 filing 25 fee or qualified to proceed in forma pauperis, the Court DISMISSES the case without 26 prejudice. To have this case reopened, Petitioner must submit, no later than December 27 31, 2019, a copy of this Order with the $5.00 fee or with adequate proof of his inability to 28 pay the fee. 1 EXHAUSTION OF STATE COURT REMEDIES 2 The Petition presents eleven claims. ECF No. 1 at 6–50. Petitioner indicates that he 3 has only presented claim one to the state supreme court and has not presented the remaining 4 claims to that court. Id. 5 Habeas petitioners who wish to challenge either their state court conviction or the 6 length of their confinement in state prison must first exhaust state judicial remedies. 28 7 U.S.C. § 2254(b), (c); Granberry v. Greer, 481 U.S. 129, 133–34 (1987). To exhaust state 8 judicial remedies, a California state prisoner must present the California Supreme Court 9 with a fair opportunity to rule on the merits of every issue raised in his or her federal habeas 10 petition. 28 U.S.C. § 2254(b), (c); Granberry, 481 U.S. at 133–34. Moreover, to properly 11 exhaust state court remedies a petitioner must allege, in state court, how one or more of his 12 or her federal rights have been violated. The Supreme Court in Duncan v. Henry, 513 U.S. 13 364 (1995) reasoned: “If state courts are to be given the opportunity to correct alleged 14 violations of prisoners’ federal rights, they must surely be alerted to the fact that the 15 prisoners are asserting claims under the United States Constitution.” Id. at 365–66 16 (emphasis added). For example, “[i]f a habeas petitioner wishes to claim that an 17 evidentiary ruling at a state court trial denied him [or her] the due process of law guaranteed 18 by the Fourteenth Amendment, he [or she] must say so, not only in federal court, but in 19 state court.” Id. at 366 (emphasis added). The burden of proving a claim has been 20 exhausted lies with Petitioner. Cartwright v. Cupp, 650 F.2d 1103, 1104 (9th Cir. 1981). 21 “[F]ederal district courts must dismiss mixed habeas petitions.” Pliler v. Ford, 542 22 U.S. 225, 230 (2004) (citing Rose v. Lundy, 455 U.S. 509, 510, 522 (1982)). As set forth 23 above, the Petition is dismissed for failure to satisfy the filing fee requirement. However, 24 anticipating that Petitioner may pay the filing fee or be granted leave to proceed in forma 25 pauperis and have the case reopened, the Petition will remain subject to dismissal as 26 containing one exhausted claim and ten unexhausted claims. The Court hereby notifies 27 Petitioner of his options to avoid a future dismissal of a mixed petition for failing to allege 28 complete exhaustion of state court remedies if he satisfies the filing fee requirement. 1 i) First Option: Allege Complete Exhaustion 2 Petitioner may allege he has in fact exhausted state court remedies as to all claims. 3 ii) Second Option: Voluntarily Dismiss the Petition 4 Petitioner may move to voluntarily dismiss his entire federal petition and return to 5 state court to exhaust his unexhausted claims. He may then file a new federal petition 6 containing only exhausted claims. See Rose v. Lundy, 455 U.S. 509, 510, 520–21 (stating 7 that a petitioner who files a mixed petition may dismiss his petition to “return[] to state 8 court to exhaust his claims.”) Petitioner is cautioned that any new federal petition must be 9 filed before expiration of the one-year statute of limitations. Ordinarily, a petitioner has 10 one year from when his conviction became final to file his federal petition, unless he can 11 show that statutory or equitable “tolling” applies. Duncan v. Walker, 533 U.S. 167, 176 12 (2001); 28 U.S.C. § 2244(d).1 13 The statute of limitations does not run while a properly filed state habeas corpus 14 petition is pending in state court. 28 U.S.C. § 2244(d)(2); see Nino v. Galaza, 183 F.3d 15 16 17 1 28 U.S.C. § 2244 (d) provides: (1) A 1-year period of limitation shall apply to an application for a writ of 18 habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of-- 19 (A) the date on which the judgment became final by the conclusion of direct 20 review or the expiration of the time for seeking such review;
21 (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, 22 if the applicant was prevented from filing by such State action;
23 (C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme 24 Court and made retroactively applicable to cases on collateral review; or
25 (D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence. 26 (2) The time during which a properly filed application for State post- 27 conviction or other collateral review with respect to the pertinent judgement or claim is pending shall not be counted toward any period of limitation under 28 this subsection. 1 1003, 1006 (9th Cir. 1999) (“[W]e hold that the statute of limitations is tolled from the time 2 the first state habeas petition is filed until the California Supreme Court rejects the 3 petitioner’s final collateral challenge.”), overruled in part by Carey v. Saffold, 536 U.S. 4 214, 225–26 (2002) (holding that if a petitioner unreasonably delays filing a habeas petition 5 in a higher California court after a denial in a lower court, he is not entitled to statutory 6 tolling during the gap between those petitions). But see Artuz v. Bennett, 531 U.S. 4, 8 7 (2000) (holding that “an application is ‘properly filed’ when its delivery and acceptance 8 [by the appropriate court officer for placement into the record] are in compliance with the 9 applicable laws and rules governing filings.”); Bonner v. Carey, 425 F.3d 1145, 1149, as 10 amended 439 F.3d 993 (9th Cir. 2005) (holding that a state application for post-conviction 11 relief which is ultimately dismissed as untimely was neither “properly filed” nor “pending” 12 while it was under consideration by the state court, and therefore does not statutorily toll 13 the statute of limitations). However, absent some other basis for tolling, the statute of 14 limitations continues to run while a federal habeas petition is pending. Duncan, 533 U.S. 15 at 181-82. 16 iii) Third Option: File a Motion to Stay the Federal Proceedings 17 Petitioner may file a motion to stay this proceeding while he returns to state court to 18 exhaust his unexhausted claims. There are two methods potentially available to Petitioner, 19 the “stay and abeyance” procedure and the “withdrawal and abeyance” procedure. 20 If Petitioner wishes to use the “stay and abeyance” procedure he should ask the Court 21 to stay his mixed petition while he returns to state court to exhaust. Under this procedure 22 he must show he has arguably meritorious claims which he wishes to return to state court 23 to exhaust, that he is diligently pursuing his state court remedies with respect to the claims, 24 and that good cause exists for his failure to timely exhaust his state court remedies. Rhines 25 v. Webber, 544 U.S. 269, 277–78 (2005). 26 If Petitioner wishes to use the “withdrawal and abeyance” procedure, he must 27 voluntarily withdraw his unexhausted claims, ask the Court to stay the proceedings and 28 hold the fully-exhausted petition in abeyance while he returns to state court to exhaust, and ] |/then seek permission to amend his petition to include the newly exhausted claim after 2 ||exhaustion is complete. King v. Ryan, 564 F.3d. 1133, 1135 (9th Cir. 2009). Although 3 || under this procedure Petitioner is not required to demonstrate good cause for his failure to 4 ||timely exhaust, the newly exhausted claims must be either timely under the statute of 5 || limitations or “relate back” to the claims in the fully-exhausted petition, that is, they must 6 || share a “common core of operative facts” with the previously exhausted claims. King, 564 7 at 1141 (quoting Mayle v. Felix, 545 U.S. 644, 659 (2005)). 8 CONCLUSION AND ORDER 9 The Court DISMISSES the Petition without prejudice for failure to satisfy the filing 10 requirement. To proceed with this matter Petitioner must, on or before December 31, 11 2019, pay the $5.00 filing fee or submit a request to proceed in forma pauperis and choose 12 || one of the options listed above in order to avoid having his petition dismissed for failing to 13 allege exhaustion of state court remedies as to all claims presented. The Clerk of Court 14 send Petitioner a blank Southern District of California in forma pauperis application 15 || along with a copy of this Order. 16 IT IS SO ORDERED. 17 |! Dated: November 1, 2019. Medal (biel 18 Hon. Michael M. Anello 19 United States District Judge 20 21 22 23 24 25 26 27 28