1 2 UNITED STATES DISTRICT COURT 3 NORTHERN DISTRICT OF CALIFORNIA 4 5 ROBERT C. HOHMANN, Case No. 24-cv-03597-RMI

6 Petitioner,

ORDER OF DISMISSAL WITH LEAVE

7 v. TO AMEND

8 ROB ST. ANDRE, Respondent. 9

10 11 Petitioner, a California prisoner, filed a pro se petition for a writ of habeas corpus pursuant 12 to 28 U.S.C. § 2254. The original petition was dismissed with leave to amend, and Petitioner has 13 filed an amended petition (dkt. 13). 14 BACKGROUND 15 Petitioner pled no contest to sexually abusing his stepdaughter. People v. Hohmann, No. 16 A167916, 2023 WL 8868067, at *1 (Cal. Ct. App. Dec. 22, 2023). He was sentenced to 20 years 17 in prison. Id. The California Court of Appeal affirmed the judgment, and the California Supreme 18 Court denied a petition for review. (Id.; dkt. 13 at 3). Petitioner indicates that he filed no other 19 challenges to this conviction. (dkt. 13 at 3). 20 DISCUSSION 21 Standard of Review 22 This court may entertain a petition for writ of habeas corpus “in behalf of a person in 23 custody pursuant to the judgment of a State court only on the ground that he is in custody in 24 violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a); Rose v. 25 Hodges, 423 U.S. 19, 21 (1975). Habeas corpus petitions must meet heightened pleading 26 requirements. McFarland v. Scott, 512 U.S. 849, 856 (1994). An application for a federal writ of 27 habeas corpus filed by a prisoner, who is in state custody pursuant to a judgment of a state court, 1 supporting each ground.” Rule 2(c) of the Rules Governing § 2254 Cases; 28 U.S.C. foll. § 2254. 2 “[N]otice pleading is not sufficient, for the petition is expected to state facts that point to a real 3 possibility of constitutional error.” Rule 4 Advisory Committee Notes (quoting Aubut v. Maine, 4 431 F.2d 688, 689 (1st Cir. 1970) (internal quotation marks omitted)). 5 Legal Claims 6 The original petition contained numerous claims and allegations that were not clearly 7 identified, and some failed to state a federal claim. Petitioner stated that he did not file any state 8 habeas petitions, yet many of his claims did not appear to have been presented on direct appeal. 9 The petition was dismissed with leave to amend to address these deficiencies. The amended 10 petition has only partially corrected these problems. 11 Petitioner alleges that: (1) he was diagnosed with a depressive disorder, and he cannot 12 function normally or communicate properly; (2) due to the depressive disorder and other mental 13 health issues, Petitioner could not understand the implications of accepting the plea and counsel 14 was ineffective for not understanding his mental state, and (3) due to his depressive disorder he 15 should never have accepted the plea deal. 16 As presented and even liberally construed the first and third claims fail to state a 17 cognizable habeas claim.1 While his mental health could serve as the basis for a habeas claim, 18 simply arguing that he has a mental health disorder does not demonstrate the violation of a federal 19 right. While Petitioner’s second claim could state a federal claim, there is no indication that this 20 claim was exhausted. There was no claim in Petitioner’s direct appeal regarding counsel being 21 ineffective due to Petitioner’s mental health which resulted in not understanding the plea. See 22 Hohmann, 2023 WL 8868067, at *1-4. The California Court of Appeal even noted that Petitioner 23 understood the consequences of the plea. Id. at 2. 24 Petitioner can only proceed with claims that have been exhausted by being presented to the 25 California Supreme Court. The amended petition is dismissed with leave to amend. Petitioner may 26 demonstrate that the claim regarding counsel being ineffective because he did not understand the 27 1 plea was exhausted or Petitioner may also file a motion for a stay to exhaust this claim. 2 Prisoners in state custody who wish to challenge collaterally in federal habeas proceedings 3 either the fact or length of their confinement are first required to exhaust state judicial remedies, 4 || either on direct appeal or through collateral proceedings, by presenting the highest state court 5 available with a fair opportunity to rule on the merits of each and every claim they seek to raise in 6 || federal court. See 28 U.S.C. § 2254(b), (c); Rose v. Lundy, 455 U.S. 509, 515-16 (1982). 7 In Rhines v. Weber, 544 U.S. 269 (2005) the United States Supreme Court found that a 8 stay and abeyance of a federal petition should be available only in the limited circumstance that 9 good cause is shown for a failure to have first exhausted the claims in state court, that the claim or 10 || claims at issue potentially have merit and that there has been no indication that petitioner has been 11 intentionally dilatory in pursuing the litigation. Rhines, supra, at 277-78. If Petitioner wishes to 12 stay this action, he shall file a motion addressing the Rhines factors. 5 13 CONCLUSION 14 The amended petition is DISMISSED with leave to amend in accordance with the 3 15 standards set forth above. The second amended petition or motion for a stay must be filed within 16 twenty-eight (28) days of the date this order is served and must include the caption and civil case 3 17 number used in this order and the words AMENDED PETITION or MOTION FOR A STAY 18 || on the first page. Failure to amend or file a motion for a stay within the designated time will result 19 in the dismissal of these claims. 20 Petitioner must keep the court informed of any change of address and must comply with 21 the Court’s orders in a timely fashion. Failure to do so may result in the dismissal of this action for 22 || failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b). See Martinez v. Johnson, 23 104 F.3d 769, 772 (Sth Cir. 1997) (Rule 41(b) applicable in habeas cases). 24 IT IS SO ORDERED. 25 Dated: October 23, 2024 26 Mt Z 27 28 ROBERT M. ILLMAN United States Magistrate Judge