1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 TOMMY LEE WILLIAMS, Case No.: 3:21-cv-1167-CAB-WVG

12 Petitioner,

ORDER DENYING REQUEST FOR

13 v. EXTENSION OF TIME AND

NOTIFYING PETITIONER THE

14 RAYTHEL FISHER, Warden,

PETITION REMAINS DISMISSED

15 Respondent. WITHOUT PREJUDICE [Doc. No. 21] 16 17 On April 14, 2021, Petitioner, currently detained at Vista Detention Facility in Vista, 18 California and proceeding pro se, filed a Petition for Writ of Habeas Corpus pursuant to 28 19 U.S.C. § 2254.1 On June 30, 2021, the Court dismissed the case without prejudice because 20 Petitioner failed to satisfy the filing fee requirement, failed to name a proper respondent, 21 and failed to state a cognizable claim. See ECF No. 3. The Court notified Petitioner that to 22 have his case reopened, he needed to satisfy the filing fee requirement and file a First 23 24 25 1 The Petition was originally filed in the United States Court of Appeals for the Ninth Circuit as an “Application for Leave to File Second or Successive Petition under 28 U.S.C. § 2254.” See Pet., ECF 26 No. 1 at 1. The Ninth Circuit found Petitioner did not need leave to file a habeas petition in the district court because he had not previously challenged his conviction on federal habeas. See Williams v. Fisher, 27 No. 21-70067 (9th Cir. June 24, 2021), ECF No. 1-2. Accordingly, the Ninth Circuit transferred the case to this Court, while “expressing no opinion as to the merits of the applicant’s claims or whether the 28 1 Amended Petition which cured the pleading deficiencies outlined in the Court’s Order. See 2 id. After receiving an extension of time, Petitioner filed a Motion to Proceed In Forma 3 Pauperis and a First Amended Petition on October 14, 2021. ECF Nos. 11 & 12. On 4 October 25, 2021, the Court issued an Order granting Petitioner’s Motion to Proceed In 5 Forma Pauperis and dismissing the First Amended Petition without prejudice for failure to 6 allege exhaustion of state judicial remedies. ECF No. 13. The Court notified Petitioner that 7 in order to proceed he must file a Second Amended Petition by December 3, 2021. Id. 8 On November 29, 2021, Petitioner submitted a letter in which he stated he was 9 having difficulty meeting the Court’s deadline because he had been “isolated in his cell 10 90% of the time” and has not been able to use the law library. ECF No. 16 at 1. He also 11 stated he was awaiting a ruling on a habeas petition which was pending before the 12 California Supreme Court. Id. The Court liberally construed Petitioner’s letter as a request 13 for an extension of time to file an amended petition. See Erickson v. Pardus, 551 U.S. 89, 14 94 (2007) (“A document filed pro se is to be liberally construed.”). On December 2, 2021, 15 the Court granted Petitioner a second extension of time until January 17, 2022 to file a 16 Second Amended Petition. In the Order, the Court cautioned Petitioner that it would be his 17 last extension of time “unless some new and presently unforeseeable good cause arises.” 18 ECF No. 17 at 2. 19 On January 17, 2022, Petition submitted a letter to the Court in which he stated that 20 he was unable to file a Second Amended Petition before the deadline set by the Court 21 because the California Supreme Court had not yet ruled on his petition for writ of habeas 22 corpus. ECF No. 18 at 1. Petitioner also stated that he was awaiting resentencing in San 23 Diego Superior Court as a result of Assembly Bill 865 which permits sentencing courts 24 must consider any trauma, substance abuse, and mental health problems caused by a 25 defendant’s service in the United States military as mitigating factors weighing in favor of 26 a low-term sentence. Id.; see also Cal. Penal Code § 1170.91(a). The Court construed 27 Petitioner’s letter as another request for an extension of time to file a fully exhausted 28 amended petition. See Erickson, 551 U.S. at 94. Based on Petitioner’s letter, however, it 1 || was clear the claims raised in the First Amended Petition remained unexhausted because 2 || the California Supreme Court had yet to issue its ruling. As the Court noted in its February 3 2022 Order (ECF No. 19), when available state court remedies have not been exhausted 4 to all claims, a district court must dismiss a petition. Rose v. Lundy, 455 U.S. 509, 515- 5 || 16 (1982); see also Rasberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir. 2006); Jiminez v. 6 || Rice, 276 F.3d 478, 481 (9th Cir. 2001). The Court concluded that Petitioner had not shown 7 || “new and unforeseeable good cause” to justify another extension and therefore denied the 8 ||extension of time and dismissed the case without prejudice to refiling it as a new case once 9 || Petitioner completed exhaustion of state judicial remedies. See ECF No. 19. 10 On March16, 2022, Petitioner filed another letter in which he again seeks more time 11 file an amended petition. ECF No. 21. He also submitted a letter from the California 12 ||Supreme Court, dated February 24, 2022, indicating that his petition for writ of habeas 13 corpus, Case No. S270910, is still pending before that court. See ECF No. 20. Thus, as 14 || discussed in this Court’s February 4, 2022 Order, the claims remain unexhausted. See Rose, 15 ||455 U.S. at 515-16. The case therefore REMAINS DISMISSED and Petitioner’s request 16 || for an extension of time is DENIED. The Court again notes that the dismissal is without 17 || prejudice to filing a petition for writ of habeas corpus as a new case, which will be 18 || given a new case number, once exhaustion of the claims in state court is complete, and 19 || any other applicable pleading requirements are met. For Petitioner’s convenience, the Clerk 20 || of Court shall include a blank form petition for writ of habeas corpus along with this Order. 21 IT IS SO ORDERED. 22 ||Dated: March 23, 2022 € 23 Hon. Cathy Ann Bencivengo 24 United States District Judge 25 26 27 28