Gary Johnson v. Craig Koenig

[7] 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA [10] GARY JOHNSON, 11 Case No. 20-07371 BLF (PR) Petitioner, 12 ORDER OF DISMISSAL; DENYING v. MOTION FOR STAY AND 13 ABEYANCE 14 CRAIG KOEING, et al., 15 Respondents. (Docket No. 3) [17] 18 Petitioner, a state convict proceeding pro se, filed a petition for a writ of habeas 19 corpus pursuant to 28 U.S.C. § 2254 challenging the denial of parole by the California 20 Board of Parole Hearings.1 Dkt. No. 1. Petitioner paid the filing fee. Dkt. No. 10. 21 Petitioner also filed a motion for stay and abeyance, stating that his habeas petition is still 22 pending before the California Supreme Court. Dkt. No. 3 at 3. For the reasons discussed 23 below, the motion is denied and the petition is dismissed for failure to exhaust state 24 judicial remedies. /// [25] /// [27] 1 I. DISCUSSION 2 A. Exhaustion 3 Prisoners in state custody who wish to challenge collaterally in federal habeas 4 proceedings either the fact or length of their confinement, including challenges to 5 administrative decisions denying parole, are first required to exhaust state judicial 6 remedies, either on direct appeal or through collateral proceedings, by presenting the 7 highest state court available with a fair opportunity to rule on the merits of each and every 8 claim they seek to raise in federal court. See 28 U.S.C. § 2254 (b)-(c). 9 If available state remedies have not been exhausted as to all claims, the district 10 court must dismiss the petition. Duckworth v. Serrano, 454 U.S. 1, 3-5 (1981). Before he 11 may challenge either the fact or length of his confinement in a habeas petition in this 12 Court, petitioner must present to the California Supreme Court any claims he wishes to 13 raise in this court. See Rose v. Lundy, 455 U.S. 509, 522 (1982) (holding every claim 14 raised in federal habeas petition must be exhausted). If available state remedies have not 15 been exhausted as to all claims, the district court must dismiss the petition. See id., [455] 16 U.S. at 510; Guizar v. Estelle, 843 F.2d 371, 372 (9th Cir. 1988). 17 According to the petition and the papers submitted therewith, Petitioner was denied 18 parole on October 24, 2019, after a parole suitability hearing. Dkt. No. 3; Dkt. No. 2 at 19 127 (Ex. H). He filed a state petition for writ of habeas corpus in the state superior court 20 challenging the denial of parole on January 10, 2020; the petition was denied. Id. He filed 21 another state petition in the state appellate court, which denied the petition on June 22, 22 2020. Dkt. No. 2 at 144. Petitioner then filed a state habeas petition in the state high court 23 on July 9, 2020. Dkt. No. 1 at 4. As of the date he filed the instant action, the matter was 24 still pending before the California Supreme Court. Dkt. No. 3 at 3. Accordingly, it is clear 25 from the petition and motion for stay that Petitioner did not exhaust his state judicial 26 remedies before filing this action, and it is therefore subject to dismissal on that basis. See 27 Rose, 455 U.S. at 522 . 1 Nor is a stay appropriate or necessary at this time because it does not appear that 2 || Petitioner is facing any risk of having the federal statute of limitations expire while he is 3 || waiting for the state high court’s decision. For prisoners challenging administrative 4 || decisions such as the revocation of good time credits or the denial of parole, 28 U.S.C. § 5 || 2244(d)(1)(D) applies and the one-year limitations period begins to run on the date the 6 || administrative decision becomes final. Shelby v. Bartlett, 391 F.3d 1061, 1066 (9th Cir. 7 || 2004) (limitations period began to run the day after he received timely notice of the denial 8 || of his administrative appeal challenging disciplinary decision); Redd v. McGrath, 343 F.3d 9 1077, 1079 (9th Cir. 2003) (limitations period began to run when BPT denied prisoner’s 10 || administrative appeal challenging the BPT's decision that he was unsuitable for parole). A 11 || prisoner challenging an administrative decision, like the denial of parole, is entitled to q (12 statutory tolling while state habeas petitions are pending. See Redd, 343 F.3d at 1084 . 5 13 || Accordingly, Petitioner’s federal limitations period is currently tolled while his state S 14 || habeas petition is pending in the state high court, and therefore a stay is unnecessary. 16 II. CONCLUSION 5 17 For the foregoing reasons, the petition for writ of habeas corpus is DISMISSED for 18 failure to exhaust state remedies. See Rose, 455 U.S. at 510 . The dismissal is without 19 || prejudice to Petitioner refiling once he has exhausted state judicial remedies, i.e., the state 20 || supreme court issues a decision denying relief. Petitioner’s motion for stay is DENIED. 1 Dkt. No. 3. 22 This order terminates Docket No. 3. 23 The Clerk shall close the file. 24 IT ISSO ORDERED. 25 || Dated: January 8, 2021 feb Lowe homer) 26 United States District Judge Order of Dismissal 27 P:\PRO-SE\BLF\HC.20\0737 LJohnson_dism(exh)