Hurtado v. Madden

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 RAMON HURTADO, Case No.: 3:21-cv-01386-CAB-AGS 12 Petitioner, ORDER: 13 v. (1) CONSTRUING PETITION AS 14 RAYMOND MADDEN, Warden, ONE FILED PURSUANT TO 28 15 Respondent. U.S.C. § 2254; and 16 (2) NOTICE REGARDING 17 POSSIBLE DISMISSAL OF PETITION FOR FAILURE TO 18 EXHAUST STATE COURT 19 REMEDIES 20 21 Petitioner, a state prisoner proceeding pro se, has paid the $5.00 filing fee and has 22 filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. (ECF No. 1.) 23 BASIS FOR THE PETITION 24 Although Petitioner filed this action pursuant to § 2241, he is a state prisoner 25 attacking the validity of a state court conviction and sentence imposed by the state of 26 California. Therefore, Petitioner may not proceed under § 2241, but may only proceed 27 with a habeas action in federal court under 28 U.S.C. § 2254. White v. Lambert, 370 F.3d 28 1002, 1006–07 (9th Cir. 2004) (holding that section 2254 is the proper jurisdictional basis 1 for a habeas petition brought by an individual “in custody pursuant to a state court 2 judgment”). 28 U.S.C. § 2254 is properly understood as “in effect implement[ing] the 3 general grant of habeas corpus authority found in § 2241 as long as the person is in custody 4 pursuant to the judgment of a state court, and not in state custody for some other reason, 5 such as pre-conviction custody, custody awaiting extradition, or other forms of custody 6 that are possible without a conviction.” [citations omitted.] Id. at 1006 (quoting Walker v. 7 O’Brien, 216 F.3d 626, 633 (7th Cir. 2000) (emphasis in original). Accordingly, the Court 8 CONSTRUES the Petition as one filed pursuant to 28 U.S.C. § 2254. 9 FAILURE TO ALLEGE EXHAUSTION 10 AS TO ALL CLAIMS IN THE PETITION 11 The exhaustion requirement is satisfied by providing the state courts with a “fair 12 opportunity” to rule on Petitioner’s constitutional claims. Anderson v. Harless, 459 U.S. 13 4, 6 (1982). In most instances, a claim is exhausted once it is presented to a state’s highest 14 court, either on direct appeal or through state collateral proceedings. See Sandgathe v. 15 Maass, 314 F.3d 371, 376 (9th Cir. 2002). The constitutional claim raised in the federal 16 proceedings must be the same as that raised in the state proceedings. See id. 17 Petitioner has not alleged exhaustion as to claims two and three. (See Pet., ECF No 18 1 at 19–20.) Having preliminarily determined the petition contains unexhausted claims, 19 the Court notifies Petitioner of the possible dismissal of his petition.1 20 21 22 1 As currently pleaded, claims two and three of the Petition do not state a federal constitutional claim. To 23 present a cognizable federal habeas corpus claim under § 2254, a petitioner must allege both that he is in custody pursuant to a “judgment of a State court,” and that he is in custody in “violation of the Constitution 24 or laws or treaties of the United States.” See 28 U.S.C. § 2254(a). Further, a Petitioner cannot simply 25 amend his Petition to state a federal habeas claim and then refile the amended petition. He must first exhaust any federal claim. Granberry v. Greer, 481 U.S. 129, 133-34 (1987). Additionally, the Court 26 cautions Petitioner that under the Antiterrorism and Effective Death Penalty Act of 1996, there is a one- year statute of limitation for a 28 U.S.C. § 2254 writ of habeas corpus. The limitation period runs from 27 the latest of: (A) the date on which the judgment became final by the conclusion of direct review or 28 1 PETITIONER’S OPTIONS 2 To avoid the Court dismissing the petition on its own accord, Petitioner may choose 3 one of the following options. 4 1) First Option: Demonstrate Exhaustion 5 Petitioner may file further papers with this Court to demonstrate that he has in fact 6 exhausted the claim(s) the Court has determined are likely unexhausted. If Petitioner 7 chooses this option, his papers are due no later than September 27, 2021. Respondent 8 may file a reply by October 27, 2021. 9 2) Second Option: Voluntarily Dismiss the Petition 10 Petitioner may move to voluntarily dismiss his entire federal petition and return to 11 state court to exhaust his unexhausted claims. Petitioner may then file a new federal 12 petition containing only exhausted claims. See Rose v. Lundy, 455 U.S. 509, 510, 520-21 13 (stating that a petitioner who files a mixed petition may dismiss his petition to “return[] to 14 state court to exhaust his claims”). If Petitioner chooses this second option, he must file a 15 pleading with this Court no later than September 27, 2021. Respondent may file a reply 16 by October 27, 2021. 17 18 19 20 (B) the date on which the impediment to filing an application created by State action in 21 violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action; 22 (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 23 retroactively applicable to cases on collateral review; or (D) the date on which the factual predicate of the claim or claims presented could have 24 been discovered through the exercise of due diligence. 25 28 U.S.C. § 2244(d)(1)(A)-(D) (West Supp. 2020). The statute of limitations does not run while a properly filed state habeas corpus petition is 26 pending. 28 U.S.C. § 2244(d)(2); see Nino v. Galaza, 183 F.3d 1003, 1006 (9th Cir. 1999); Artuz v. Bennett, 531 U.S. 4, 8 (2000) (“an application is ‘properly filed’ when its delivery and acceptance [by 27 the appropriate court officer for placement into the record] are in compliance with the applicable laws and rules governing filings.”). Absent some other basis for tolling, the statute of limitations does run 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). 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 Nino v. Galaza, 183 F.3d 1003, 1006 (9th 7 Cir. 1999). But see Artuz v. Bennett, 531 U.S. 4, 8 (2000) (holding that “an application is 8 ‘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 3) Third Option: Formally Abandon Unexhausted Claims 17 Petitioner may formally abandon his unexhausted claims and proceed with his 18 exhausted one. See Rose, 455 U.S. at 510, 520-21 (stating that a petitioner who files a 19 mixed petition may “resubmit[] the habeas petition to present only exhausted claims”). If 20 Petitioner chooses this third option, he must file a pleading with this Court no later than 21 September 27, 2021. Respondent may file a reply by October 27, 2021. 22 Petitioner is cautioned that once he abandons his unexhausted claim(s), he may lose 23 the ability to ever raise it/them in federal court. See Slack v. McDaniel, 529 U.S. 473, 488 24 (2000) (stating that a court’s ruling on the merits of claims presented in a first § 2254 25 petition renders any later petition successive); see also 28 U.S.C. § 2244 (a)–(b). 26 / / / 27 / / / 28 / / / 1 4) Fourth Option: File a Motion to Stay the Federal Proceedings 2 Petitioner may file a motion to stay this federal proceeding while he returns to state 3 court to exhaust his unexhausted claims. There are two methods available to Petitioner, 4 the “stay and abeyance” procedure and the “withdrawal and abeyance” procedure. 5 If Petitioner wishes to use the “stay and abeyance” procedure he should ask the Court 6 to stay his mixed petition while he returns to state court to exhaust. Under this procedure 7 he must demonstrate there are arguably meritorious claims which he wishes to return to 8 state court to exhaust, that he is diligently pursuing his state court remedies with respect to 9 those claims, and that good cause exists for his failure to timely exhaust his state court 10 remedies. Rhines v. Webber, 544 U.S. 269, 277-78 (2005). 11 If Petitioner wishes to use the “withdrawal and abeyance” procedure, he must 12 voluntarily withdraw his unexhausted claims, ask the Court to stay the proceedings and 13 hold the fully-exhausted petition in abeyance while he returns to state court to exhaust, and 14 then seek permission to amend his petition to include the newly exhausted claims after 15 exhaustion is complete. King v. Ryan, 564 F.3d 1133, 1141–42 (9th Cir. 2009). Although 16 under this procedure Petitioner is not required to demonstrate good cause for his failure to 17 timely exhaust, the newly exhausted claims must be either timely under the statute of 18 limitations or “relate back” to the claims in the fully-exhausted petition, that is, they must 19 share a “common core of operative facts” with the previously exhausted claims. Id. at 20 1142–43, quoting Mayle v. Felix, 545 U.S. 644. 659 (2005). 21 If Petitioner chooses this fourth option, he must file a pleading with this Court no 22 later than September 27, 2021. Respondent may file a reply by October 27, 2021. 23 CONCLUSION 24 For the foregoing reasons, the Court CONSTRUES the Petition as one filed 25 pursuant to 28 U.S.C. § 2254. Further, the Court NOTIFIES PETITIONER THAT HE 26 HAS FILED A PETITION THAT CONTAINS BOTH EXHAUSTED AND 27 UNEXHAUSTED CLAIMS AND IT IS THEREFORE SUBJECT TO DISMISSAL. 28 / / / 1 ||If Petitioner fails to respond to this Order, the Court will dismiss the Petition without 2 || prejudice. See Rose, 455 U.S. at 522. 3 IT IS SO ORDERED. 4 ||Dated: August 4, 2021 (jb 5 Hon. Cathy Ann Bencivengo 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