Opinion
No. C 11-1552 JSW (PR).
December 12, 2011.
ORDER GRANTING MOTION TO DISMISS; DIRECTING PETITIONER CHOOSE DISMISSAL, AMENDMENT OR STAY OF THE PETITION (Docket No. 8).
INTRODUCTION
BACKGROUND
28 U.S.C. § 2254
DISCUSSION
Respondent concedes that Claims 26 and 31 through 37, which were all raised in the petition for direct review, have been exhausted. He contends, however, that the remaining 30 claims, which Petitioner only raised in the habeas petition to the California Supreme Court, have not been exhausted.
An application for a federal writ of habeas corpus filed by a prisoner who is in state custody pursuant to a judgment of a state court may not be granted unless the prisoner has first exhausted state judicial remedies, either by way of a direct appeal or in collateral proceedings, by presenting the highest state court available with a fair opportunity to rule on the merits of each and every issue he or she seeks to raise in federal court. See 28 U.S.C. § 2254(b),(c); Granberry v. Greer, 481 U.S. 129, 133-34 (1987). Petitioner has the burden of pleading exhaustion in his or her habeas petition. See Cartwright v. Cupp, 650 F.2d 1103, 1104 (9th Cir. 1981).
The United States Supreme Court held in Rose v. Lundy, 455 U.S. 509 (1982), that federal courts must dismiss a habeas petition which contains one or more unexhausted claims. Id. at 522 (1982). If the petition combines exhausted and unexhausted claims, Rose v. Lundy requires dismissal of the entire habeas petition without reaching the merits of any of its claims. Guizar v. Estelle, 843 F.2d 371, 372 (9th Cir. 1988). However, the rule is not as absolute as might first appear. Rose itself provides that the dismissal must be with leave to amend to delete the unexhausted claims; if they are deleted, the court can then consider those which remain. See Anthony v. Cambra, 236 F.3d 568, 574 (9th Cir. 2000). And there are two other exceptions: One is that when the petition fails to raise even a colorable federal claim, it may be denied even if it is partly or entirely unexhausted, 28 U.S.C. § 2254(b)(2), and the other is that rather than dismiss, the court may stay a mixed petition to allow the petitioner to return to state court to exhaust the unexhausted issue or issues, Rhines v. Weber, 544 U.S. 269, 277-78 (2005).
Respondent argues that the 30 claims raised only in the habeas petition to the California Supreme Court were not exhausted because they were denied with a citation to In re Swain, 34 Cal. 2d 300, 304 (1949). In re Swain articulates California's procedural requirements that a California habeas petitioner allege with particularity the facts supporting his claims and explain and justify any delay in the presentation of the claims. See In re Swain, 34 Cal. 2d 300, 304 (1949). Here, the citation to Swain was for the proposition that the petitioner did not present his claims with sufficient particularity, as evidenced by the fact that it was accompanied by a citation to People v. Duvall, 9 Cal. 22 4th 464, 474 (1995) (requiring habeas claims to be stated with particularity). See Pombrio v. Hense, 631 F. Supp. 2d 1247, 1252 (C.D. Cal. 2009) (holding that when accompanied by citation to Duvall, citation to Swain indicates that habeas petition being dismissed for lack of particularity). In such a case, the Ninth Circuit treats the Swain citation as standing for a denial on procedural grounds which can be cured in a renewed state petition. See Kim v. Villalobos, 799 F.2d 1317, 1319 (9th Cir. 1986). State judicial remedies therefore are not exhausted. See id.; accord McQuown v. McCartney, 795 F.2d 807, 808 n.1, 809 (9th Cir. 1986); Harris v. Superior Court, 500 F.2d 1124, 1128 (9th Cir. 1974).
If a petitioner maintains that the state procedural denial based on Swain was erroneous because he did allege his claims with particularity and that they are incapable of being alleged with any greater particularity, a federal court cannot per se find the claims unexhausted, and must instead independently examine the petition presented to the state court to determine whether the claims were fairly presented. See Kim, 799 F.2d at 1319-20. Here, however, Petitioner does not contend that the procedural denial was erroneous, that he did allege his claims with particularity, or that the claims cannot be alleged with any greater particularity. Indeed, in his traverse, which he filed in lieu of an opposition, Petitioner does not dispute that the claims are not exhausted. Consequently, the Court concludes that the claims that were only raised in the habeas petition to the California Supreme Court, i.e. Claims 1-25, 27-30, and 38 in the instant petition, have not been properly exhausted. The petition is therefore a "mixed petition" containing both exhausted claims (Claims 26 and 31-37) and unexhausted claims. Respondent's motion to dismiss the petition will be granted, and Petitioner will be given the option to elect to proceed with one of three courses of action, as outlined below.
CONCLUSION
1. Respondent's motion to dismiss (document number 8) is GRANTED.
2. Petitioner may chose from three possible courses of action: (1) he may dismiss this petition with an eye to exhausting and then filing another federal petition; (2) he may amend the petition to dismiss the unexhausted issues, and proceed with those which are exhausted; or (3) he may ask for a stay of this case while he returns to state court to attempt to exhaust the unexhausted issues, then, if unsuccessful in state court, return here and ask that the stay be lifted and the newly exhausted issues be reinstated. If he chooses the third option, asking for a stay, he must show "good cause" for his failure to exhaust sooner, that the issues are "potentially meritorious," and that he has not engaged in "dilatory litigation tactics." See Rhines v. Weber, 544 U.S. 269, 277 (2005).
This option is more apparent than real, because any subsequent federal petition would almost certainly be barred by the statute of limitations.
If he chooses this option he probably will not be able to file a future federal petition containing the unexhausted claims because second federal petitions are generally barred by 28 U.S.C. § 2244(b)(2).
3. Petitioner must elect one of the three choices set out in section three within thirty days of the date this order is entered. If he does not, this case will be dismissed without prejudice (option 1).
4. It is Petitioner's responsibility to prosecute this case. Petitioner must keep the Court informed of any change of address by filing a separate paper captioned "Notice of Change of Address." He must comply with the Court's orders in a timely fashion. Failure to do so may result in the dismissal of this action for failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b).
IT IS SO ORDERED.