1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 MACEY ERBIE TURLEY, JR., Case No.: 22cv1252-GPC (AGS)
12 Petitioner, ORDER DENYING MOTION TO 13 v. PROCEED IN FORMA PAUPERIS AND DISMISSING FIRST 14 A. PETERSON, Warden, AMENDED PETITION FOR A WRIT 15 Respondent. OF HABEAS CORPUS WITHOUT PREJUDICE 16 17 18 On August 22, 2022, Petitioner, a state prisoner proceeding pro se, filed a Petition 19 for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254, along with a request to proceed 20 in forma pauperis. (ECF Nos. 1-2.) On August 25, 2022, the Court denied the motion to 21 proceed in forma pauperis without prejudice due to Petitioner’s failure to provide sufficient 22 financial documentation. (ECF No. 3.) The Court dismissed the Petition for failure to 23 satisfy the filing fee requirement and failure to name a proper respondent with leave to 24 amend. (Id. at 1-2.) The Court at that time also notified Petitioner that because he had 25 failed to allege exhaustion of state court remedies as to any claim in the Petition, if his 26 amended petition also failed to allege exhaustion of state court remedies it would be subject 27 to dismissal on that basis, and that he was required to either allege exhaustion or choose 28 one of several options to avoid such a dismissal. (Id. at 2-6.) 1 Petitioner has now filed a First Amended Petition to which he has attached copies of 2 his inmate trust account statements which the Court construes as a renewed motion to 3 proceed in forma pauperis. (ECF No. 4.) Although the First Amended Petition names a 4 proper Respondent, it once again fails to allege exhaustion of state court remedies as to any 5 claim, and Petitioner did not choose one of the options listed in the Court’s prior order. 6 REQUEST TO PROCEED IN FORMA PAUPERIS 7 The request to proceed in forma pauperis is denied because Petitioner’s most recent 8 inmate trust account statement reflects a $54.93 balance in his prison trust account. (ECF 9 No. 4-1 at 1.) The filing fee associated with this type of action is $5.00. See 28 U.S.C. 10 § 1914(a). Because it appears Petitioner can pay the requisite filing fee, the Court DENIES 11 the request to proceed in forma pauperis and DISMISSES the case without prejudice for 12 failure to satisfy the filing fee requirement. 13 FAILURE TO ALLEGE EXHAUSTION OF STATE COURT REMEDIES 14 In addition, it once again does not appear that state court remedies have been 15 exhausted as to any claim. Habeas petitioners who wish to challenge either their state court 16 conviction or the length of their confinement in state prison must first exhaust state judicial 17 remedies. See 28 U.S.C. § 2254(b), (c); Granberry v. Greer, 481 U.S. 129, 133-34 (1987); 18 see also Picard v. Connor, 404 U.S. 270, 275 (1971) (“[A] state prisoner must normally 19 exhaust available state judicial remedies before a federal court will entertain his petition 20 for habeas corpus.”) “A petitioner has satisfied the exhaustion requirement if: (1) he has 21 ‘fairly presented’ his federal claim to the highest state court with jurisdiction to consider 22 it,” which in this case is the California Supreme Court, “or (2) he demonstrates that no state 23 remedy remains available.” Johnson v. Zenon, 88 F.3d 828, 829 (9th Cir. 1996) (citations 24 omitted); see also O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999) (“[S]tate prisoners 25 must give the state courts one full opportunity to resolve any constitutional issues by 26 invoking one complete round of the State’s established appellate review process.”) The 27 claims presented in the federal courts must be the same as those exhausted in state court 28 and the petitioner must also allege, in state court, how one or more of his federal rights 1 have been violated. See Picard, 404 U.S. at 276 (“Only if the state courts have had the 2 first opportunity to hear the claim sought to be vindicated in a federal habeas proceeding 3 does it make sense to speak of the exhaustion of state remedies. Accordingly, we have 4 required a state prisoner to present the state courts with the same claim he urges upon the 5 federal courts.”); see also Duncan v. Henry, 513 U.S. 364, 365-66 (1995) (“If state courts 6 are to be given the opportunity to correct alleged violations of prisoners’ federal rights, 7 they must surely be alerted to the fact that the prisoners are asserting claims under the 8 United States Constitution. If a habeas petitioner wishes to claim that an evidentiary ruling 9 at a state court trial denied him the due process of law guaranteed by the Fourteenth 10 Amendment, he must say so, not only in federal court, but in state court.”) 11 Petitioner indicates he has not raised his claims on appeal and did not seek review 12 in the California Supreme Court. (See ECF No. 4 at 5.) In Rose v. Lundy, 455 U.S. 509 13 (1982), the United States Supreme Court adopted a “total exhaustion rule” which requires 14 federal courts to dismiss habeas petitions brought pursuant to § 2254 which do not contain 15 only exhausted claims. Id. at 522. Because the one-year statute of limitations imposed on 16 § 2254 habeas petitions after Rose was decided created a risk of a claim dismissed under 17 Rose becoming time-barred, the Court approved of a procedure by which the Petition is 18 stayed while the Petitioner returns to state court to exhaust. See Rhines v. Weber, 544 U.S. 19 269, 278 (2005); see also Mena v. Long, 813 F.3d 907, 912 (9th Cir. 2016) (holding that a 20 Rhines stay may be appropriate even for a fully unexhausted petition). A federal habeas 21 court may grant a Rhines stay when (1) “the petitioner had good cause for his failure to 22 exhaust,” (2) “his unexhausted claims are potentially meritorious,” and (3) “there is no 23 indication that the petitioner engaged in intentionally dilatory litigation tactics.” Rhines, 24 544 U.S. at 278. If Petitioner succeeds in satisfying the filing fee requirement the following 25 options are available to avoid a future dismissal for presenting a Petition with only 26 unexhausted claims. 27 / / / 28 / / / 1 i) First Option: Demonstrate Exhaustion 2 Petitioner may file a Second Amended Petition in which he alleges he has exhausted 3 state court remedies no later than October 25, 2022. 4 ii) Second Option: Voluntarily Dismiss the Petition 5 Petitioner may move to voluntarily dismiss his entire federal petition and return to 6 state court to exhaust the unexhausted claims. Petitioner may then file a new federal 7 petition containing only exhausted claims. 8 Petitioner is cautioned that any new federal petition must be filed before expiration 9 of the one-year statute of limitations. Ordinarily, a petitioner has one year to file his federal 10 petition from when his conviction becomes final, unless he can show that statutory or 11 equitable “tolling” applies.1 12 13
14 15 1 28 U.S.C. § 2244
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 MACEY ERBIE TURLEY, JR., Case No.: 22cv1252-GPC (AGS)
12 Petitioner, ORDER DENYING MOTION TO 13 v. PROCEED IN FORMA PAUPERIS AND DISMISSING FIRST 14 A. PETERSON, Warden, AMENDED PETITION FOR A WRIT 15 Respondent. OF HABEAS CORPUS WITHOUT PREJUDICE 16 17 18 On August 22, 2022, Petitioner, a state prisoner proceeding pro se, filed a Petition 19 for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254, along with a request to proceed 20 in forma pauperis. (ECF Nos. 1-2.) On August 25, 2022, the Court denied the motion to 21 proceed in forma pauperis without prejudice due to Petitioner’s failure to provide sufficient 22 financial documentation. (ECF No. 3.) The Court dismissed the Petition for failure to 23 satisfy the filing fee requirement and failure to name a proper respondent with leave to 24 amend. (Id. at 1-2.) The Court at that time also notified Petitioner that because he had 25 failed to allege exhaustion of state court remedies as to any claim in the Petition, if his 26 amended petition also failed to allege exhaustion of state court remedies it would be subject 27 to dismissal on that basis, and that he was required to either allege exhaustion or choose 28 one of several options to avoid such a dismissal. (Id. at 2-6.) 1 Petitioner has now filed a First Amended Petition to which he has attached copies of 2 his inmate trust account statements which the Court construes as a renewed motion to 3 proceed in forma pauperis. (ECF No. 4.) Although the First Amended Petition names a 4 proper Respondent, it once again fails to allege exhaustion of state court remedies as to any 5 claim, and Petitioner did not choose one of the options listed in the Court’s prior order. 6 REQUEST TO PROCEED IN FORMA PAUPERIS 7 The request to proceed in forma pauperis is denied because Petitioner’s most recent 8 inmate trust account statement reflects a $54.93 balance in his prison trust account. (ECF 9 No. 4-1 at 1.) The filing fee associated with this type of action is $5.00. See 28 U.S.C. 10 § 1914(a). Because it appears Petitioner can pay the requisite filing fee, the Court DENIES 11 the request to proceed in forma pauperis and DISMISSES the case without prejudice for 12 failure to satisfy the filing fee requirement. 13 FAILURE TO ALLEGE EXHAUSTION OF STATE COURT REMEDIES 14 In addition, it once again does not appear that state court remedies have been 15 exhausted as to any claim. Habeas petitioners who wish to challenge either their state court 16 conviction or the length of their confinement in state prison must first exhaust state judicial 17 remedies. See 28 U.S.C. § 2254(b), (c); Granberry v. Greer, 481 U.S. 129, 133-34 (1987); 18 see also Picard v. Connor, 404 U.S. 270, 275 (1971) (“[A] state prisoner must normally 19 exhaust available state judicial remedies before a federal court will entertain his petition 20 for habeas corpus.”) “A petitioner has satisfied the exhaustion requirement if: (1) he has 21 ‘fairly presented’ his federal claim to the highest state court with jurisdiction to consider 22 it,” which in this case is the California Supreme Court, “or (2) he demonstrates that no state 23 remedy remains available.” Johnson v. Zenon, 88 F.3d 828, 829 (9th Cir. 1996) (citations 24 omitted); see also O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999) (“[S]tate prisoners 25 must give the state courts one full opportunity to resolve any constitutional issues by 26 invoking one complete round of the State’s established appellate review process.”) The 27 claims presented in the federal courts must be the same as those exhausted in state court 28 and the petitioner must also allege, in state court, how one or more of his federal rights 1 have been violated. See Picard, 404 U.S. at 276 (“Only if the state courts have had the 2 first opportunity to hear the claim sought to be vindicated in a federal habeas proceeding 3 does it make sense to speak of the exhaustion of state remedies. Accordingly, we have 4 required a state prisoner to present the state courts with the same claim he urges upon the 5 federal courts.”); see also Duncan v. Henry, 513 U.S. 364, 365-66 (1995) (“If state courts 6 are to be given the opportunity to correct alleged violations of prisoners’ federal rights, 7 they must surely be alerted to the fact that the prisoners are asserting claims under the 8 United States Constitution. If a habeas petitioner wishes to claim that an evidentiary ruling 9 at a state court trial denied him the due process of law guaranteed by the Fourteenth 10 Amendment, he must say so, not only in federal court, but in state court.”) 11 Petitioner indicates he has not raised his claims on appeal and did not seek review 12 in the California Supreme Court. (See ECF No. 4 at 5.) In Rose v. Lundy, 455 U.S. 509 13 (1982), the United States Supreme Court adopted a “total exhaustion rule” which requires 14 federal courts to dismiss habeas petitions brought pursuant to § 2254 which do not contain 15 only exhausted claims. Id. at 522. Because the one-year statute of limitations imposed on 16 § 2254 habeas petitions after Rose was decided created a risk of a claim dismissed under 17 Rose becoming time-barred, the Court approved of a procedure by which the Petition is 18 stayed while the Petitioner returns to state court to exhaust. See Rhines v. Weber, 544 U.S. 19 269, 278 (2005); see also Mena v. Long, 813 F.3d 907, 912 (9th Cir. 2016) (holding that a 20 Rhines stay may be appropriate even for a fully unexhausted petition). A federal habeas 21 court may grant a Rhines stay when (1) “the petitioner had good cause for his failure to 22 exhaust,” (2) “his unexhausted claims are potentially meritorious,” and (3) “there is no 23 indication that the petitioner engaged in intentionally dilatory litigation tactics.” Rhines, 24 544 U.S. at 278. If Petitioner succeeds in satisfying the filing fee requirement the following 25 options are available to avoid a future dismissal for presenting a Petition with only 26 unexhausted claims. 27 / / / 28 / / / 1 i) First Option: Demonstrate Exhaustion 2 Petitioner may file a Second Amended Petition in which he alleges he has exhausted 3 state court remedies no later than October 25, 2022. 4 ii) Second Option: Voluntarily Dismiss the Petition 5 Petitioner may move to voluntarily dismiss his entire federal petition and return to 6 state court to exhaust the unexhausted claims. Petitioner may then file a new federal 7 petition containing only exhausted claims. 8 Petitioner is cautioned that any new federal petition must be filed before expiration 9 of the one-year statute of limitations. Ordinarily, a petitioner has one year to file his federal 10 petition from when his conviction becomes final, unless he can show that statutory or 11 equitable “tolling” applies.1 12 13
14 15 1 28 U.S.C. § 2244(d) provides: (1) A 1-year period of limitation shall apply to an application for a writ of 16 habeas corpus by a person in custody pursuant to the judgment of a State court. 17 The limitation period shall run from the latest of-- 18 (A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review; 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 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 October 25, 2022. 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 he must demonstrate there are arguably meritorious claim(s) which he wishes to return to 18 state court to exhaust, that he is diligently pursuing his state court remedies with respect to 19 those claim(s), and that good cause exists for his failure to timely exhaust his state court 20 remedies. Rhines, 544 U.S. at 277-78. If Petitioner chooses this third option, he must file 21 a Motion for a stay no later than October 25, 2022. 22 CONCLUSION AND ORDER 23 For the foregoing reasons, Petitioner’s Motion to proceed in forma pauperis is 24 DENIED and the First Amended Petition is DISMISSED without prejudice for failure to 25 satisfy the filing fee requirement. Petitioner is NOTIFIED that his First Amended Petition 26 as currently drafted is subject to dismissal for failure to allege exhaustion of state court 27 remedies even if he satisfies the filing fee requirement. If Petitioner wishes to proceed 28 with this matter, he must, on or before October 25, 2022, either pay the $5.00 filing fee or 1 ||submit a properly supported motion to proceed in forma pauperis and notify the Court 2 || which of the options outlined above he chooses. 3 IT ISSO ORDERED. 4 ||Dated: September 20, 2022 72 + 5 Hon. athe Coke 6 United States District Judge 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28