1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 DAVID B. DURAN, Case No.: 24cv1625 BEN (AHG)

12 Petitioner,

ORDER DENYING SECOND

13 v. MOTION TO PROCEED IN FORMA PAUPERIS [ECF No. 6] AS MOOT 14 MR. CLIFFORD DAVIS, et al.,

AND NOTIFYING PETITIONER OF

15 Respondents. OPTIONS TO AVOID DISMISSAL

OF AMENDED PETITION

16 17 On September 9, 2024, Petitioner, who indicated he is currently on parole arising 18 from an Imperial County Superior Court judgment of conviction, proceeding pro se, filed 19 a Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. (ECF No. 1.) On 20 September 17, 2024, the Court dismissed the case without prejudice for failure to satisfy 21 the filing fee requirement, failure to name a proper Respondent and failure to allege 22 exhaustion of state judicial remedies. (ECF No. 2.) On September 18, 2024, Petitioner 23 filed a motion to proceed in forma pauperis. (ECF No. 3.) On September 20, 2024, the 24 Court granted Petitioner’s motion but reminded Petitioner that if he wished to re-open and 25 proceed with this case, he must submit, no later than November 18, 2024, an Amended 26 Petition that cured the deficiencies of pleading previously identified by the Court. (See 27 ECF No. 4.) On October 16, 2024, Petitioner filed an Amended Petition and a second 28 motion to proceed in forma pauperis. (ECF Nos. 5, 6.) 1 DISCUSSION 2 First, because Petitioner has already been granted in forma pauperis status (see ECF 3 No. 4), the Court DENIES Petitioner’s second motion to proceed in forma pauperis as 4 moot. 5 Second, with respect to the Amended Petition itself, while Petitioner has now named 6 a proper Respondent, it does not appear state court remedies have been exhausted as to 7 either of the two enumerated claims in the Amended Petition. Habeas petitioners who wish 8 to challenge either their state court conviction or the length of their confinement in state 9 prison, must first exhaust state judicial remedies. 28 U.S.C. § 2254(b), (c); Granberry v. 10 Greer, 481 U.S. 129, 133-34 (1987); see also Picard v. Connor, 404 U.S. 270, 275 (1971) 11 (“[A] state prisoner must normally exhaust available state judicial remedies before a federal 12 court will entertain his petition for habeas corpus.”) “A petitioner has satisfied the 13 exhaustion requirement if: (1) he has ‘fairly presented’ his federal claim to the highest state 14 court with jurisdiction to consider it,” which in this case is the California Supreme Court, 15 “or (2) he demonstrates that no state remedy remains available.” Johnson v. Zenon, 88 16 F.3d 828, 829 (9th Cir. 1996) (citations omitted); see also O’Sullivan v. Boerckel, 526 U.S. 17 838, 845 (1999) (“[S]tate prisoners must give the state courts one full opportunity to resolve 18 any constitutional issues by invoking one complete round of the State’s established 19 appellate review process.”) 20 Additionally, the claims presented in the federal courts must be the same as those 21 exhausted in state court and a petitioner must also allege, in state court, how one or more 22 of his federal rights have been violated. See Picard, 404 U.S. at 276 (“Only if the state 23 courts have had the first opportunity to hear the claim sought to be vindicated in a federal 24 habeas proceeding does it make sense to speak of the exhaustion of state remedies. 25 Accordingly, we have required a state prisoner to present the state courts with the same 26 claim he urges upon the federal courts.”); see also Duncan v. Henry, 513 U.S. 364, 365-66 27 (1995) (“If state courts are to be given the opportunity to correct alleged violations of 28 prisoners’ federal rights, they must surely be alerted to the fact that the prisoners are 1 asserting claims under the United States Constitution. If a habeas petitioner wishes to claim 2 that an evidentiary ruling at a state court trial denied him the due process of law guaranteed 3 by the Fourteenth Amendment, he must say so, not only in federal court, but in state court.”) 4 Here, Petitioner raises two enumerated grounds for relief in the Amended Petition 5 and indicates that neither ground has been raised in the California Supreme Court. (See 6 ECF No. 5 at 6, 7.) In response to the question on the habeas form inquiring why he did 7 not file a petition, application or motion in the California Supreme Court containing the 8 grounds raised in the federal Petition, Petitioner stated: “Because I believe the federal court 9 has jurysdiction [sic], and supreme court will be my last step depending on the outcome of 10 federal court.” (Id. at 5.) 11 In Rose v. Lundy, 455 U.S. 509 (1982), the United States Supreme Court held that a 12 petition which did not contain only unexhausted claims is subject to dismissal because it 13 violates the “total exhaustion rule” required in habeas petitions brought pursuant to § 2254, 14 but that a petitioner must be permitted an opportunity to cure that defect prior to dismissal. 15 Id. at 514-20. Because the one-year statute of limitations imposed on section 2254 habeas 16 petitions after Lundy was decided created a risk of a claim dismissed under Lundy 17 becoming time-barred, the Supreme Court subsequently approved of a procedure by which 18 a federal Petition could be stayed while a petitioner returned to state court to exhaust. See 19 Rhines v. Weber, 544 U.S. 269, 277-78 (2005); see also Mena v. Long, 813 F.3d 907, 912 20 (9th Cir. 2016) (“[A] district court has the discretion to stay and hold in abeyance fully 21 unexhausted petitions under the circumstances set forth in Rhines.”) The Supreme Court 22 has instructed “stay and abeyance should be available only in limited circumstances” and 23 was appropriate where: (1) “there was good cause for the petitioner’s failure to exhaust his 24 claims first in state court,” (2) the “unexhausted claims are potentially meritorious” and 25 (3) “there is no indication that the petitioner engaged in intentionally dilatory litigation 26 tactics.” Rhines, 544 U.S. at 277-78. 27 The Court now notifies Petitioner of his options to avoid a future dismissal for 28 presenting a petition with only unexhausted claims, with a new deadline set forth below. 1 i) First Option: Demonstrate Exhaustion 2 Petitioner may file papers in which he alleges he has exhausted the claim(s) in the 3 Petition. If Petitioner chooses this option, these papers are due no later than December 2, 4 2024. 5 ii) Second Option: Voluntarily Dismiss the Petition 6 Petitioner may move to voluntarily dismiss his entire federal petition and return to 7 state court to exhaust the unexhausted claim(s). Petitioner may then file a new federal 8 petition containing only exhausted claim(s). 9 Petitioner is cautioned that any new federal petition must be filed before expiration 10 of the one-year statute of limitations. Ordinarily, a petitioner has one year from when his 11 conviction became final to file his federal petition, unless he can show that statutory or 12 equitable “tolling” applies. Duncan v. Walker, 533 U.S. 167, 176 (2001); 28 U.S.C. 13 § 2244(d).1 The statute of limitations does not run while a properly filed state habeas 14

15 16 1 28 U.S.C. § 2244 (d) provides: 17 (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. 18 The limitation period shall run from the latest of-- 19 (A) the date on which the judgment became final by the conclusion of direct 20 review or the expiration of the time for seeking such review; 21 (B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is 22 removed, if the applicant was prevented from filing by such State action; 23 (C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized 24 by the Supreme Court and made retroactively applicable to cases on 25 collateral review; or 26 (D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence. 27 (2) The time during which a properly filed application for State post- 28 1 corpus petition is pending. 28 U.S.C. § 2244(d)(2); see Nino v. Galaza, 183 F.3d 1003, 2 1006 (9th Cir. 1999). But see Artuz v. Bennett, 531 U.S. 4, 8 (2000) (holding that “an 3 application is ‘properly filed’ when its delivery and acceptance [by the appropriate court 4 officer for placement into the record] are in compliance with the applicable laws and rules 5 governing filings.”); Bonner v. Carey, 425 F.3d 1145, 1149 (9th Cir. 2005) (holding that a 6 state application for post-conviction relief which is ultimately dismissed as untimely was 7 neither “properly filed” nor “pending” while it was under consideration by the state court, 8 and therefore does not toll the statute of limitations), as amended 439 F.3d 993. However, 9 absent some other basis for tolling, the statute of limitations continues to run while a federal 10 habeas petition is pending. Duncan, 533 U.S. at 181-82. 11 If Petitioner chooses this second option, he must file a voluntary dismissal with this 12 Court no later than December 2, 2024. 13 iii) Third Option: File a Motion to Stay the Federal Proceedings 14 Petitioner may file a motion to stay this federal proceeding while he returns to state 15 court to exhaust his unexhausted claim(s). If Petitioner wishes to use the Rhines procedure, 16 he must demonstrate there are arguably meritorious claim(s) which he wishes to return to 17 state court to exhaust, that he is diligently pursuing his state court remedies with respect to 18 those claim(s), and that good cause exists for his failure to timely exhaust his state court 19 remedies. Rhines, 544 U.S. at 277-78. If Petitioner chooses this third option, he must file 20 a motion for a stay with this Court no later than December 2, 2024. 21 CONCLUSION AND ORDER 22 For the foregoing reasons, the Court DENIES Petitioner’s second motion to proceed 23 in forma pauperis [ECF No. 6] as moot and NOTIFIES Petitioner that his Amended 24 Petition as currently drafted is subject to dismissal for failure to allege exhaustion of state 25

26 27 or claim is pending shall not be counted toward any period of limitation under this subsection. 28 1 ||court remedies. If Petitioner wishes to proceed with the instant habeas action, he must, no 2 than December 2, 2024, notify the Court which of the options outlined above he 3 ||chooses. Petitioner is cautioned that if he fails to respond to this Order, the Amended 4 || Petition will be dismissed without prejudice. See Rose, 455 U.S. at 522. 5 |} IT IS SO ORDERED. 6 || Dated: October 23, 2024 . 7 8 Hom er T. Benitez 9 United States District Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28