1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 MACEY E. TURLEY, JR., Case No.: 23cv0123-RBM (NLS)
12 Petitioner, ORDER GRANTING REQUEST TO 13 v. PROCEED IN FORMA PAUPERIS AND NOTIFYING PETITIONER OF 14 A. PETERSON, OPTIONS TO AVOID DISMISSAL 15 Respondent. OF PETITION 16 17 Petitioner, a state prisoner proceeding pro se, has filed a Petition for a Writ of Habeas 18 Corpus pursuant to 28 U.S.C. § 2254. (ECF No. 1.) Attached to the Petition are copies of 19 Petitioner’s inmate trust account statement which the Court construes as a request to 20 proceed in forma pauperis. (ECF No. 1-2 at 1-2.) 21 REQUEST TO PROCEED IN FORMA PAUPERIS 22 Petitioner has $0.03 on account at the California correctional institution in which he 23 is presently confined (ECF No. 1-2 at 1), and cannot afford the $5.00 filing fee. Thus, the 24 Court GRANTS Petitioner’s application to proceed in forma pauperis. 25 FAILURE TO ALLEGE EXHAUSTION OF STATE COURT REMEDIES 26 It does not appear that state court remedies have been exhausted as to any claim in 27 the Petition. Habeas petitioners who wish to challenge either their state court conviction 28 or the length of their confinement in state prison must first exhaust state judicial remedies. 1 See 28 U.S.C. § 2254(b), (c); Granberry v. Greer, 481 U.S. 129, 133-34 (1987); see also 2 Picard v. Connor, 404 U.S. 270, 275 (1971) (“[A] state prisoner must normally exhaust 3 available state judicial remedies before a federal court will entertain his petition for habeas 4 corpus.”) “A petitioner has satisfied the exhaustion requirement if: (1) he has ‘fairly 5 presented’ his federal claim to the highest state court with jurisdiction to consider it,” which 6 in this case is the California Supreme Court, “or (2) he demonstrates that no state remedy 7 remains available.” Johnson v. Zenon, 88 F.3d 828, 829 (9th Cir. 1996) (citations omitted); 8 see also O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999) (“[S]tate prisoners must give the 9 state courts one full opportunity to resolve any constitutional issues by invoking one 10 complete round of the State’s established appellate review process.”) The claims presented 11 in the federal courts must be the same as those exhausted in state court and the petitioner 12 must also allege, in state court, how one or more of his federal rights have been violated. 13 See Picard, 404 U.S. at 276 (“Only if the state courts have had the first opportunity to hear 14 the claim sought to be vindicated in a federal habeas proceeding does it make sense to 15 speak of the exhaustion of state remedies. Accordingly, we have required a state prisoner 16 to present the state courts with the same claim he urges upon the federal courts.”); see also 17 Duncan v. Henry, 513 U.S. 364, 365-66 (1995) (“If state courts are to be given the 18 opportunity to correct alleged violations of prisoners’ federal rights, they must surely be 19 alerted to the fact that the prisoners are asserting claims under the United States 20 Constitution. If a habeas petitioner wishes to claim that an evidentiary ruling at a state 21 court trial denied him the due process of law guaranteed by the Fourteenth Amendment, he 22 must say so, not only in federal court, but in state court.”) 23 Petitioner indicates he has not raised his claims on appeal and did not seek review 24 in the California Supreme Court. (See ECF No. 1 at 5-6.) In Rose v. Lundy, 455 U.S. 509 25 (1982), the United States Supreme Court adopted a “total exhaustion rule” which requires 26 federal courts to dismiss habeas petitions brought pursuant to § 2254 which do not contain 27 only exhausted claims. Id. at 522. Because the one-year statute of limitations imposed on 28 § 2254 habeas petitions after Rose was decided created a risk of a claim dismissed under 1 Rose becoming time-barred, the Court approved of a procedure by which the Petition is 2 stayed while the Petitioner returns to state court to exhaust. See Rhines v. Weber, 544 U.S. 3 269, 278 (2005); see also Mena v. Long, 813 F.3d 907, 912 (9th Cir. 2016) (holding that a 4 Rhines stay may be appropriate even for a fully unexhausted petition). A federal habeas 5 court may grant a Rhines stay when (1) “the petitioner had good cause for his failure to 6 exhaust,” (2) “his unexhausted claims are potentially meritorious,” and (3) “there is no 7 indication that the petitioner engaged in intentionally dilatory litigation tactics.” Rhines, 8 544 U.S. at 278. 9 The following options are available to Petitioner to avoid a future dismissal for 10 presenting a Petition with only unexhausted claims. 11 i) First Option: Demonstrate Exhaustion 12 Petitioner may file a document in which he alleges he has exhausted the claims in 13 the Petition. If Petitioner chooses this option, the document is due no later than March 1, 14 2023. 15 ii) Second Option: Voluntarily Dismiss the Petition 16 Petitioner may move to voluntarily dismiss his entire federal petition and return to 17 state court to exhaust the unexhausted claims. Petitioner may then file a new federal 18 petition containing only exhausted claims. 19 Petitioner is cautioned that any new federal petition must be filed before expiration 20 of the one-year statute of limitations. Ordinarily, a petitioner has one year to file his federal 21 petition from when his conviction becomes final, unless he can show that statutory or 22 equitable “tolling” applies.1 23 24 1 28 U.S.C. § 2244(d) provides: 25 (1) A 1-year period of limitation shall apply to an application for a writ of 26 habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of-- 27 (A) the date on which the judgment became final by the conclusion of direct 28 1 The statute of limitations does not run while a properly filed state habeas corpus 2 petition is pending. 28 U.S.C. § 2244(d)(2); see Nino v. Galaza, 183 F.3d 1003, 1006 (9th 3 Cir. 1999); but see Artuz v. Bennett, 531 U.S. 4, 8 (2000) (holding that “an application is 4 ‘properly filed’ when its delivery and acceptance [by the appropriate court officer for 5 placement into the record] are in compliance with the applicable laws and rules governing 6 filings.”); Bonner v. Carey, 425 F.3d 1145, 1149 (9th Cir. 2005) (holding that a state 7 application for post-conviction relief which is ultimately dismissed as untimely was neither 8 “properly filed” nor “pending” while it was under consideration by the state court, and 9 therefore does not toll the statute of limitations), as amended 439 F.3d 993.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 MACEY E. TURLEY, JR., Case No.: 23cv0123-RBM (NLS)
12 Petitioner, ORDER GRANTING REQUEST TO 13 v. PROCEED IN FORMA PAUPERIS AND NOTIFYING PETITIONER OF 14 A. PETERSON, OPTIONS TO AVOID DISMISSAL 15 Respondent. OF PETITION 16 17 Petitioner, a state prisoner proceeding pro se, has filed a Petition for a Writ of Habeas 18 Corpus pursuant to 28 U.S.C. § 2254. (ECF No. 1.) Attached to the Petition are copies of 19 Petitioner’s inmate trust account statement which the Court construes as a request to 20 proceed in forma pauperis. (ECF No. 1-2 at 1-2.) 21 REQUEST TO PROCEED IN FORMA PAUPERIS 22 Petitioner has $0.03 on account at the California correctional institution in which he 23 is presently confined (ECF No. 1-2 at 1), and cannot afford the $5.00 filing fee. Thus, the 24 Court GRANTS Petitioner’s application to proceed in forma pauperis. 25 FAILURE TO ALLEGE EXHAUSTION OF STATE COURT REMEDIES 26 It does not appear that state court remedies have been exhausted as to any claim in 27 the Petition. Habeas petitioners who wish to challenge either their state court conviction 28 or the length of their confinement in state prison must first exhaust state judicial remedies. 1 See 28 U.S.C. § 2254(b), (c); Granberry v. Greer, 481 U.S. 129, 133-34 (1987); see also 2 Picard v. Connor, 404 U.S. 270, 275 (1971) (“[A] state prisoner must normally exhaust 3 available state judicial remedies before a federal court will entertain his petition for habeas 4 corpus.”) “A petitioner has satisfied the exhaustion requirement if: (1) he has ‘fairly 5 presented’ his federal claim to the highest state court with jurisdiction to consider it,” which 6 in this case is the California Supreme Court, “or (2) he demonstrates that no state remedy 7 remains available.” Johnson v. Zenon, 88 F.3d 828, 829 (9th Cir. 1996) (citations omitted); 8 see also O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999) (“[S]tate prisoners must give the 9 state courts one full opportunity to resolve any constitutional issues by invoking one 10 complete round of the State’s established appellate review process.”) The claims presented 11 in the federal courts must be the same as those exhausted in state court and the petitioner 12 must also allege, in state court, how one or more of his federal rights have been violated. 13 See Picard, 404 U.S. at 276 (“Only if the state courts have had the first opportunity to hear 14 the claim sought to be vindicated in a federal habeas proceeding does it make sense to 15 speak of the exhaustion of state remedies. Accordingly, we have required a state prisoner 16 to present the state courts with the same claim he urges upon the federal courts.”); see also 17 Duncan v. Henry, 513 U.S. 364, 365-66 (1995) (“If state courts are to be given the 18 opportunity to correct alleged violations of prisoners’ federal rights, they must surely be 19 alerted to the fact that the prisoners are asserting claims under the United States 20 Constitution. If a habeas petitioner wishes to claim that an evidentiary ruling at a state 21 court trial denied him the due process of law guaranteed by the Fourteenth Amendment, he 22 must say so, not only in federal court, but in state court.”) 23 Petitioner indicates he has not raised his claims on appeal and did not seek review 24 in the California Supreme Court. (See ECF No. 1 at 5-6.) In Rose v. Lundy, 455 U.S. 509 25 (1982), the United States Supreme Court adopted a “total exhaustion rule” which requires 26 federal courts to dismiss habeas petitions brought pursuant to § 2254 which do not contain 27 only exhausted claims. Id. at 522. Because the one-year statute of limitations imposed on 28 § 2254 habeas petitions after Rose was decided created a risk of a claim dismissed under 1 Rose becoming time-barred, the Court approved of a procedure by which the Petition is 2 stayed while the Petitioner returns to state court to exhaust. See Rhines v. Weber, 544 U.S. 3 269, 278 (2005); see also Mena v. Long, 813 F.3d 907, 912 (9th Cir. 2016) (holding that a 4 Rhines stay may be appropriate even for a fully unexhausted petition). A federal habeas 5 court may grant a Rhines stay when (1) “the petitioner had good cause for his failure to 6 exhaust,” (2) “his unexhausted claims are potentially meritorious,” and (3) “there is no 7 indication that the petitioner engaged in intentionally dilatory litigation tactics.” Rhines, 8 544 U.S. at 278. 9 The following options are available to Petitioner to avoid a future dismissal for 10 presenting a Petition with only unexhausted claims. 11 i) First Option: Demonstrate Exhaustion 12 Petitioner may file a document in which he alleges he has exhausted the claims in 13 the Petition. If Petitioner chooses this option, the document is due no later than March 1, 14 2023. 15 ii) Second Option: Voluntarily Dismiss the Petition 16 Petitioner may move to voluntarily dismiss his entire federal petition and return to 17 state court to exhaust the unexhausted claims. Petitioner may then file a new federal 18 petition containing only exhausted claims. 19 Petitioner is cautioned that any new federal petition must be filed before expiration 20 of the one-year statute of limitations. Ordinarily, a petitioner has one year to file his federal 21 petition from when his conviction becomes final, unless he can show that statutory or 22 equitable “tolling” applies.1 23 24 1 28 U.S.C. § 2244(d) provides: 25 (1) A 1-year period of limitation shall apply to an application for a writ of 26 habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of-- 27 (A) the date on which the judgment became final by the conclusion of direct 28 1 The statute of limitations does not run while a properly filed state habeas corpus 2 petition is pending. 28 U.S.C. § 2244(d)(2); see Nino v. Galaza, 183 F.3d 1003, 1006 (9th 3 Cir. 1999); but see Artuz v. Bennett, 531 U.S. 4, 8 (2000) (holding that “an application is 4 ‘properly filed’ when its delivery and acceptance [by the appropriate court officer for 5 placement into the record] are in compliance with the applicable laws and rules governing 6 filings.”); Bonner v. Carey, 425 F.3d 1145, 1149 (9th Cir. 2005) (holding that a state 7 application for post-conviction relief which is ultimately dismissed as untimely was neither 8 “properly filed” nor “pending” while it was under consideration by the state court, and 9 therefore does not toll the statute of limitations), as amended 439 F.3d 993. However, 10 absent some other basis for tolling, the statute of limitations continues to run while a federal 11 habeas petition is pending. Duncan, 533 U.S. at 181-82. 12 If Petitioner chooses this second option, he must file a voluntary dismissal with this 13 Court no later than March 1, 2023. 14 iii) Third Option: File a Motion to Stay the Federal Proceedings 15 Petitioner may file a motion to stay this federal proceeding while he returns to state 16 court to exhaust his unexhausted claims. If Petitioner wishes to use the Rhines procedure 17 18 19 (B) the date on which the impediment to filing an application created by 20 State action in violation of the Constitution or laws of the United States is 21 removed, if the applicant was prevented from filing by such State action; (C) the date on which the constitutional right asserted was initially 22 recognized by the Supreme Court, if the right has been newly recognized 23 by the Supreme Court and made retroactively applicable to cases on collateral review; or 24 (D) the date on which the factual predicate of the claim or claims presented 25 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 1 ||he must demonstrate there are arguably meritorious claim(s) which he wishes to return to 2 court to exhaust, that he is diligently pursuing his state court remedies with respect to 3 those claim(s), and that good cause exists for his failure to timely exhaust his state court 4 ||remedies. Rhines, 544 U.S. at 277-78. If Petitioner chooses this third option, he must file 5 ||a Motion for a stay of his Petition no later than March 1, 2023. 6 CONCLUSION AND ORDER 7 For the foregoing reasons, Petitioner’s application to proceed in forma pauperis is 8 || GRANTED and Petitioner is NOTIFIED that his Petition as currently drafted is subject 9 || to dismissal for failure to allege exhaustion of state court remedies. If Petitioner wishes to 10 || proceed with this matter, he must, on or before March 1, 2023, notify the Court which of 11 options outlined above he chooses. If Petitioner fails to notify the Court of his choice 12 || of option this action will be dismissed without prejudice. 13 IT IS SO ORDERED. 14 || Dated: January 26, 2023 Fe Le ? L IS HON. RUTH BERMUDEZ MONTENEGRO 16 UNITED STATES DISTRICT JUDGE 17 18 19 20 21 22 23 24 25 26 27 28