Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 DANTEA TERRELL COOPER, Case No.: 26-cv-0996-AJB-BLM 12 Petitioner, ORDER: 13 v. (1) DIRECTING CLERK TO 14 JEFFREY MACOMBER, Secretary, SUBSTITUTE RESPONDENT AND 15 Respondent. (2) NOTIFYING PETITIONER OF 16 OPTIONS TO AVOID DISMISSAL OF 17 AMENDED PETITION 18 19 On February 17, 2026, Petitioner Dantea Terrell Cooper (“Petitioner”), who 20 indicates he is currently on parole arising from a San Diego County Superior Court 21 judgment of conviction, proceeding pro se, filed a Petition for a Writ of Habeas Corpus 22 under 28 U.S.C. § 2254 challenging his 2023 judgment of conviction in case number 23 SCD295921 and paid the $5.00 filing fee. (Doc. Nos. 1; 1-12.) On March 2, 2026, the Court 24 dismissed this habeas action without prejudice because Petitioner failed to sign the petition 25 under penalty of perjury and instructed him that to have the case reopened, he must submit 26 an Amended Petition that cured the identified pleading deficiency on or before April 30, 27 2026. (Doc. No. 3.) On March 13, 2026, Petitioner submitted an Amended Petition. 28 (Doc. No. 4.) 1 I. SUBSTITUTION OF RESPONDENT 2 In the Amended Petition, Petitioner now names “Rodriguez” and Attorney General 3 Rob Bonta as Respondents to this federal habeas action (see Doc. No. 1 at 1) and Petitioner 4 specifically asks the Court to modify the name of respondent to Rodriguez, noting “[m]y 5 parole agent is now Alejandro Rodriguez” (id. at 15). 6 On federal habeas, a state prisoner must name the state officer having custody of 7 him as the respondent and if a “petitioner is on probation or parole, he may name his 8 probation or parole officer ‘and the official in charge of the parole or probation agency, or 9 the state correctional agency, as appropriate.’” Ortiz-Sandoval v. Gomez, 81 F.3d 891, 894 10 (9th Cir. 1996), citing and quoting R. 2, Rules Governing Section 2254 Cases (2019) and 11 advisory committee’s note. Because Petitioner’s parole officer has changed, so has the 12 Respondent to this action. However, in order to conform with the requirements of Rule 13 2(a) of the Rules Governing § 2254 Cases and to avoid changing the Respondent if 14 Petitioner’s parole officer changes again, the Court hereby ORDERS the substitution of 15 Jeffrey Macomber, Secretary of the California Department of Corrections and 16 Rehabilitation, as Respondent. See id. (stating that the respondent in § 2254 proceedings 17 may be the chief officer in charge of state penal institutions). 18 Additionally, the Attorney General of the State of California is not a proper 19 respondent in this action. Again, Rule 2 of the Rules following § 2254 provides that the 20 state officer having custody of the petitioner shall be named as respondent. See R. 2(a), 21 Rules Governing Section 2254 Cases (2019). However, “[i]f the petitioner is not yet in 22 custody--but may be subject to future custody--under the state-court judgment being 23 contested, the petition must name as respondents both the officer who has current custody 24 and the attorney general of the state where the judgment was entered.” R. 2(b), Rules 25 Governing Section 2254 Cases (2019). Here, there is no basis for Petitioner to have named 26 the California Attorney General as a respondent in this action. 27 /// 28 /// 1 II. FAILURE TO EXHAUST STATE COURT REMEDIES 2 Upon review, it does not appear that Petitioner has exhausted state court remedies 3 as to each of the five enumerated claims in the Amended Petition. Habeas petitioners who 4 wish to challenge either their state court conviction or the length of their confinement in 5 state prison must first exhaust state judicial remedies. See 28 U.S.C. § 2254(b), (c); 6 Granberry v. Greer, 481 U.S. 129, 133–34 (1987); see also Picard v. Connor, 404 U.S. 7 270, 275 (1971) (“[A] state prisoner must normally exhaust available state judicial 8 remedies before a federal court will entertain his petition for habeas corpus.”). “A petitioner 9 has satisfied the exhaustion requirement if: (1) he has ‘fairly presented’ his federal claim 10 to the highest state court with jurisdiction to consider it,” which in this case is the California 11 Supreme Court, “or (2) he demonstrates that no state remedy remains available.” Johnson 12 v. Zenon, 88 F.3d 828, 829 (9th Cir. 1996) (citations omitted); see also O’Sullivan v. 13 Boerckel, 526 U.S. 838, 845 (1999) (“[S]tate prisoners must give the state courts one full 14 opportunity to resolve any constitutional issues by invoking one complete round of the 15 State’s established appellate review process.”). 16 Additionally, the claims presented in the federal courts must be the same as those 17 exhausted in state court and a petitioner must also allege, in state court, how one or more 18 of his federal rights have been violated. See Picard, 404 U.S. at 276 (“Only if the state 19 courts have had the first opportunity to hear the claim sought to be vindicated in a federal 20 habeas proceeding does it make sense to speak of the exhaustion of state remedies. 21 Accordingly, we have required a state prisoner to present the state courts with the 22 same claim he urges upon the federal courts.”); see also Duncan v. Henry, 513 U.S. 364, 23 365–66 (1995) (“If state courts are to be given the opportunity to correct alleged violations 24 of prisoners’ federal rights, they must surely be alerted to the fact that the prisoners are 25 asserting claims under the United States Constitution. If a habeas petitioner wishes to claim 26 that an evidentiary ruling at a state court trial denied him the due process of law guaranteed 27 by the Fourteenth Amendment, he must say so, not only in federal court, but in state 28 court.”). 1 Here, Petitioner indicates that he raised Grounds One through Four in a habeas 2 petition filed in the California Supreme Court (see Doc. No. 4 at 7–10), but he does not 3 indicate whether he raised Ground Five in the California Supreme Court (see id. at 11).1 4 As such, it appears the Amended Petition contains both exhausted and unexhausted claims 5 and Petitioner has failed to demonstrate exhaustion as to all claims raised. 6 In Rose v. Lundy, 455 U.S. 509 (1982), the United States Supreme Court held that a 7 petition which did not contain only exhausted claims is subject to dismissal because it 8 violates the “total exhaustion rule” required in habeas petitions brought pursuant to § 2254, 9 but that a petitioner must be permitted an opportunity to cure that defect prior to dismissal. 10 Id. at 514–20. Having preliminarily determined the Petition contains both exhausted and 11 unexhausted claims, the Court notifies Petitioner of his options to avoid a future dismissal 12 for failing to exhaust state court remedies as to each of the claims alleged in the Amended 13 Petition. 14 A. First Option: Demonstrate Exhaustion 15 Petitioner may file papers in which he alleges he has exhausted the claims in the 16 Amended Petition. If Petitioner chooses this option, these papers are due no later than 17 May 18, 2026. 18 B. Second Option: Voluntarily Dismiss the Petition 19 Petitioner may move to voluntarily dismiss his entire federal petition and return to 20 state court to exhaust his unexhausted claims. Petitioner may then file a new federal petition 21 containing only exhausted claims. See Rose v. Lundy, 455 U.S. 509, 510, 520–21 (1982) 22 (stating that a petitioner who files a mixed petition may dismiss his petition to “return[] to 23 state court to exhaust his claims”). 24 25 26 27 1 In contrast, in the original federal Petition, Petitioner raised four enumerated claims for habeas relief and alleged that each of those four claims had been presented to the California Supreme Court. (See Doc. No. 28 1 Petitioner is cautioned that any new federal petition must be filed before expiration 2 of the one-year statute of limitations. Ordinarily, a petitioner has one year from when his 3 conviction became final to file his federal petition, unless he can show that statutory or 4 equitable “tolling” applies. Duncan v. Walker, 533 U.S. 167, 176 (2001); 28 U.S.C. 5 § 2244(d).2 The statute of limitations does not run while a properly filed state habeas corpus 6 petition is pending. 28 U.S.C. § 2244(d)(2); see also Nino v. Galaza, 183 F.3d 1003, 1006 7 (9th Cir. 1999); but see Artuz v. Bennett, 531 U.S. 4, 8 (2000) (holding that “an application 8 is ‘properly filed’ when its delivery and acceptance [by the appropriate court officer for 9 placement into the record] are in compliance with the applicable laws and rules governing 10 filings”); Bonner v. Carey, 425 F.3d 1145, 1149 (9th Cir. 2005) (holding that a state 11 application for post-conviction relief which is ultimately dismissed as untimely was neither 12 “properly filed” nor “pending” while it was under consideration by the state court, and 13 therefore does not toll the statute of limitations), as amended, 439 F.3d 993. However, 14 absent some other basis for tolling, the statute of limitations continues to run while a federal 15 habeas petition is pending. Duncan, 533 U.S. at 181–82. 16 17 2 28 U.S.C. § 2244 (d) provides: 18 (1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus 19 by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of-- 20 (A) the date on which the judgment became final by the conclusion of direct review or 21 the expiration of the time for seeking such review; 22 (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, if the applicant 23 was prevented from filing by such State action; 24 (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 Court and made 25 retroactively applicable to cases on collateral review; or 26 (D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence. 27 (2) The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgement or claim is pending shall not be 28 1 If Petitioner chooses this second option, he must file a voluntary dismissal with this 2 Court no later than May 18, 2026. 3 C. Third Option: Formally Abandon Unexhausted Claims 4 Petitioner may formally abandon his unexhausted claim(s) and proceed with his 5 exhausted ones. See Rose, 455 U.S. at 510, 520–21 (stating that a petitioner who files a 6 mixed petition may “resubmit[] the habeas petition to present only exhausted claims”). If 7 Petitioner chooses this third option, he must file a pleading with this Court no later than 8 May 18, 2026. Petitioner is cautioned that once he abandons his unexhausted claim(s), he 9 may lose the ability to ever raise them in federal court. See Slack v. McDaniel, 529 U.S. 10 473, 488 (2000) (stating that a court’s ruling on the merits of claims presented in a first 11 § 2254 petition renders any later petition successive); see also 28 U.S.C. § 2244 (a)–(b). 12 D. Fourth Option: File a Motion to Stay the Federal Proceedings 13 Petitioner may file a motion to stay this federal proceeding while he returns to state 14 court to exhaust his unexhausted claim(s). There are two methods available to Petitioner: 15 the “stay and abeyance” procedure and the “withdrawal and abeyance” procedure. 16 If Petitioner wishes to use the “stay and abeyance” procedure he must ask the Court 17 to stay his mixed petition while he returns to state court to exhaust. Under this procedure 18 he must demonstrate there are arguably meritorious claim(s) which he wishes to return to 19 state court to exhaust, that he is diligently pursuing his state court remedies with respect to 20 those claim(s), and that good cause exists for his failure to timely exhaust his state court 21 remedies. Rhines v. Weber, 544 U.S. 269, 277–78 (2005). 22 If Petitioner wishes to use the “withdrawal and abeyance” procedure, he must 23 voluntarily withdraw his unexhausted claim(s), ask the Court to stay the proceedings and 24 hold the fully exhausted petition in abeyance while he returns to state court to exhaust, and 25 then seek permission to amend his petition to include the newly exhausted claim(s) after 26 exhaustion is complete. King v. Ryan, 564 F.3d 1133, 1141–42 (9th Cir. 2009). Although 27 under this procedure Petitioner is not required to demonstrate good cause for his failure to 28 timely exhaust, the newly exhausted claim(s) must be either timely under the statute of 1 || limitations or “relate back” to the claims in the fully-exhausted petition—i.e., they must 2 ||share a “common core of operative facts” with the previously exhausted claim(s). /d. at 3 || 1142-43, quoting Mayle v. Felix, 545 U.S. 644. 659 (2005). If Petitioner chooses this fourth 4 || option, he must file a pleading with this Court no later than May 18, 2026. 5 CONCLUSION AND ORDER 6 For the foregoing reasons, the Court ORDERS the substitution of Jeffrey 7 ||Macomber, Secretary of the California Department of Corrections and Rehabilitation as 8 || Respondent in place of “Cooper,” “Rodriguez,” and “Rob Bonta.” The Clerk of the Court 9 || will modify the docket to reflect “Jeffrey Macomber, Secretary” in place of the former 10 |/respondents. Further, the Court NOTIFIES Petitioner that his Amended Petition as 11 |/currently drafted is subject to dismissal for failure to allege exhaustion of state court 12 ||remedies. If Petitioner wishes to proceed with this habeas action, he must, no later than 13 || May 18, 2026, notify the Court which of the options outlined above he chooses. Petitioner 14 cautioned that if he fails to respond to this Order, the Amended Petition will be subject 15 dismissal without prejudice. See Lundy, 455 U.S. at 522. 16 IT IS SO ORDERED. 17 || Dated: March 18, 2026 © 18 Hon. Anthony J. attaglia 19 United States District Judge 20 21 22 23 24 25 26 27 28