Armando Lopez v. Stu Sherman

CENTRAL DISTRICT OF CALIFORNIA CIVIL MINUTES - GENERAL Case No. CV 19-10519-JLS (SP) Date January 2, 2020 Title ARMANDO LOPEZ v. STU SHERMAN, Warden Present: The Sheri Pym, United States Magistrate Judge Honorable Kimberly I. Carter n/a n/a Deputy Clerk Court Reporter / Recorder Tape No. Attorneys Present for Petitioner: Attorneys Present for Respondent: n/a n/a Proceedings: (In Chambers) Order to Show Cause Why Petition Should Not Be Dismissed Due to Failure to Exhaust and Pending State Petition On December 12, 2019, petitioner Armando Lopez filed a Petition for Writ of Habeas Corpus by a Person in State Custody under 28 U.S.C. § 2254 (the “Petition”). This court having reviewed the Petition, it appears that the Petition is subject to dismissal because, as indicated in the Petition, petitioner has not exhausted his state remedies with respect to the grounds raised in his Petition. Further, petitioner states he has filed a state habeas petition that is currently pending before the California Supreme Court, which presumably could moot the instant federal Petition. The court will not make a final determination regarding whether the federal Petition should be dismissed, however, without giving petitioner an opportunity to address these issues. Accordingly, the court hereby issues this Order to Show Cause why the Petition should not be dismissed, and specifically orders petitioner to respond to the Order to Show Cause in writing by no later than February 3, 2020. The court further directs petitioner to review the information that follows, which provides additional explanation as to why the federal Petition appears to be subject to dismissal and may assist petitioner in determining how to respond. The Exhaustion Requirement A state prisoner must exhaust his or her state court remedies before a federal court may consider granting habeas corpus relief. 28 U.S.C. § 2254 (b)(1)(A); O’Sullivan v. Boerckel, 526 U.S. 838, 842 , 119 S. Ct. 1728 , 144 L. Ed. 2d 1 (1999). To satisfy the CENTRAL DISTRICT OF CALIFORNIA CIVIL MINUTES - GENERAL Case No. CV 19-10519-JLS (SP) Date January 2, 2020 Title ARMANDO LOPEZ v. STU SHERMAN, Warden in the state courts in order to give the State the opportunity to pass upon and correct alleged violations of the prisoner’s federal rights. Duncan v. Henry, 513 U.S. 364, 365 , 115 S. Ct. 887 , 130 L. Ed. 2d 865 (1995) (per curiam). A habeas petitioner must give the state courts “one full opportunity” to decide a federal claim by carrying out “one complete round” of the state’s appellate process in order to properly exhaust a claim. O’Sullivan, 526 U.S. at 845 . For a petitioner in California state custody, this generally means that the petitioner must have fairly presented his or her claims in a petition to the California Supreme Court. See O’Sullivan, 526 U.S. at 845 (interpreting 28 U.S.C. § 2254 (c)); Gatlin v. Madding, 189 F.3d 882,888 (9th Cir. 1999) (applying O’Sullivan to California). A claim has been fairly presented if the petitioner has both “adequately described the factual basis for [the] claim” and “identified the federal legal basis for [the] claim.” Gatlin, 189 F.3d at 888 . In this case, petitioner has raised four purported grounds for relief in his federal habeas Petition, all of which allege either that he received an unauthorized sentence or in ineffective assistance of counsel. The Petition indicates that petitioner has filed a habeas petition in the California Supreme Court alleging ineffective assistance and requesting recall of his sentence, but states that petition is still pending. The Petition further indicates that none of the grounds it raises have been ruled on by the California Supreme Court, and thus none of the grounds raised have yet been exhausted. If this is correct, the Petition is subject to dismissal. State Action Pending That Could Moot Federal Petition As just noted, when a claim raised in a federal habeas petition is still pending before a state court, the petitioner has not met the exhaustion requirement because he has not given the state court the first opportunity to address the federal claim. See Duncan, 513 U.S. at 365 . “If the prisoner’s claim is meritorious, and if the state remedy is prompt and complete, there is no need to bring post-conviction proceedings in federal courts.” Sherwood v. Tomkins, 716 F.2d 632, 633 (9th Cir. 1983) (internal quotation marks and citation omitted). Furthermore, a pending state appeal or petition renders a federal habeas petition CENTRAL DISTRICT OF CALIFORNIA CIVIL MINUTES - GENERAL Case No. CV 19-10519-JLS (SP) Date January 2, 2020 Title ARMANDO LOPEZ v. STU SHERMAN, Warden . . . an appeal of a state criminal conviction is pending, a would-be habeas corpus petitioner must await the outcome of his appeal before his state remedies are exhausted, even where the issue to be challenged . . . has been finally settled in the state courts.”); see also Schnepp v. Oregon, 333 F.2d 288, 288 (9th Cir. 1964) (per curiam) (state remedies not exhausted where a state post-conviction proceeding is pending). This is because, “even if the federal constitutional question raised by the habeas corpus petitioner cannot be resolved in a pending state appeal, that appeal may result in the reversal of the petitioner’s conviction on some other ground, thereby mooting the federal question.” Sherwood, 716 F.2d at 634 (citing Davidson v. Klinger, 411 F.2d 746, 747 (9th Cir. 1969) (per curiam)). Here, the federal Petition states petitioner has filed a habeas petition in the California Supreme Court that is still pending. If it is correct that petitioner retains a pending state action which may moot or otherwise affect his alleged constitutional claims before this Court, he must await the outcome of that action before presenting his claims in federal court, and thus the federal Petition would be subject to dismissal, unless petitioner requests and obtains a stay of the action, as discussed further below. See Henderson v. Johnson, 710 F.3d 872, 874 (9th Cir. 2013). Petitioner’s Options The Ninth Circuit has stated that lower courts “‘have no obligation to act as counsel or paralegal to pro se litigants.’” Ford v. Pliler, 590 F.3d 782, 787 (9th Cir. 2009) (quoting Pliler v. Ford, 542 U.S. 225, 231 , 124 S. Ct. 2441 , 159 L. Ed. 2d 338 (2004)). But the Ninth Circuit has also recognized that courts may provide pro se litigants with “accurate instruction” before dismissing a “mixed” petition containing both exhausted and unexhausted claims. See id. at 786 (“The district court gave [the petitioner] accurate instruction before dismissing his mixed habeas petitions without prejudice. Pliler does not allow us to require anything more.”). Petitioners with fully unexhausted petitions have some of the same options. See Mena v. Long, 813 F.3d 907, 912 (9th Cir. 2016); Henderson, 710 F.3d at 874 . Accordingly, the court presents petitioner with the following options: Option 1: CENTRAL DISTRICT OF CALIFORNIA CIVIL MINUTES - GENERAL Case No. CV 19-10519-JLS (SP) Date January 2, 2020 Title ARMANDO LOPEZ v. STU SHERMAN, Warden response to this Order to Show Cause. Further, if petitioner contends that in fact he does not currently have a petition pending for review that may moot his federal habeas Petition, he should also clearly explain in a written response. The written response must be filed on or before February 3, 2020. Petitioner should attach to his response copies of any documents establishing that grounds one through four are indeed exhausted, and that he does not have a matter pending before the California Supreme Court. (Petitioner may also file a response, and include a notice that, if the court still finds the petition to be unexhausted, he alternatively selects one of the other options discussed below.) Option 2: Petitioner may request a voluntary dismissal of this action without prejudice pursuant to Federal Rule of Civil Procedure 41(a). A Notice of Dismissal form is attached for petitioner’s convenience. The court advises petitioner, however, that if petitioner should later attempt to again raise any dismissed claims in subsequent habeas petition, those claims may be time-barred under the statute of limitations in 28 U.S.C. § 2244 (d)(1) (“A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court.”). Option 3: If petitioner contends that some of his claims are unexhausted but some are not, petitioner may request a voluntary dismissal of only the unexhausted claims, and elect to proceed on only his exhausted claims. Petitioner may also use the attached Notice of Dismissal form in order to select this option. The court advises petitioner, however, that if petitioner elects to proceed now with only certain claims, any future habeas petition containing the dismissed grounds for relief or other claims that could have been raised in the instant petition may be rejected as successive (or may be time-barred). In addition, petitioner may not be able to proceed on his exhausted claims if he has a currently pending state habeas petition. Option 4: Pursuant to Rhines v. Weber, 544 U.S. 269, 277-78 , 125 S. Ct. 1528 , 161 L. Ed. 2d 440 (2005), and Mena v. Long, 813 F.3d at 910-12 , petitioner may ask the court to stay all of the claims in the petition while petitioner returns to the state courts to exhaust his already pled but unexhausted claims. To obtain a stay of this case pursuant to Rhines, CENTRAL DISTRICT OF CALIFORNIA CIVIL MINUTES - GENERAL Case No. CV 19-10519-JLS (SP) Date January 2, 2020 Title ARMANDO LOPEZ v. STU SHERMAN, Warden meritless.” See id. at 277. (Petitioner also may request a Rhines stay, and include a notice that, if the court denies the Rhines stay, he alternatively selects one of the other options.) Option 5: If petitioner contends some of his claims are unexhausted but some are not, pursuant to Kelly v. Small, 315 F.3d 1063, 1070-71 (9th Cir. 2003), overruled on other grounds by Robbins v. Carey, 481 F.3d 1143 (9th Cir. 2007), petitioner may dismiss his unexhausted claims and ask the court to stay his remaining, fully exhausted claims while he returns to the state courts to exhaust his dismissed claims. The court advises petitioner, however, that “[a] petitioner seeking to use the Kelly procedure will be able to amend his unexhausted claims back into his federal petition once he has exhausted them only if those claims are determined to be timely. And demonstrating timeliness will often be problematic under the now-applicable legal principles.” King v. Ryan, 564 F.3d 1133, 1140-41 (9th Cir. 2009). Additionally, a petitioner may only amend a new claim into a pending federal habeas petition after the expiration of the limitations period if the new claim shares a “common core of operative facts” with the claims in the pending petition. Mayle v. Felix, 545 U.S. 644, 659 , 125 S. Ct. 2562 , 162 L. Ed. 2d 582 (2005). (Petitioner also may request a Kelly stay, and include a notice that, if the court denies the Kelly stay, he alternatively selects one of the other options.) Caution Petitioner is cautioned that if he requests a stay and the court denies the request for a stay, or if petitioner contends that he has in fact exhausted his state court remedies on all grounds and the court disagrees, the court may recommend that his petition be dismissed. Accordingly, as noted above, petitioner may select options in the alternative. In sum, in order to select Option 1, petitioner must file a response to this Order showing all grounds are exhausted, and that he does not have a petition currently pending review before a state court. In order to select Options 2 or 3, petitioner may file the attached Notice of Dismissal form and fill it out according to his choice. In order to select Options 4 or 5, petitioner must file a written response requesting a stay pursuant to either Rhines or Kelly. With Options 1, 4, or 5, petitioner may select an alternative option in the event the court finds certain claims unexhausted, that a petition remains pending in CENTRAL DISTRICT OF CALIFORNIA CIVIL MINUTES - GENERAL Case No. CV 19-10519-JLS (SP) Date January 2, 2020 Title ARMANDO LOPEZ v. STU SHERMAN, Warden no later than February 3, 2020. The court warns petitioner that failure to timely file and serve a response as directed in this order will result in a recommendation that this action be dismissed without prejudice for failure to exhaust state remedies, for failure to prosecute, and/or for failure to obey court orders.