Tolentino v. Andes

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 EDUARDO TOLENTINO, Case No.: 25-cv-1687-CAB-MMP 12 Petitioner, ORDER: 13 v. (1) GRANTING MOTION TO PROCEED 14 CHANCE ANDES, et al., IN FORMA PAUPERIS AND 15 Respondents. (2) NOTIFYING PETITIONER OF 16 OPTIONS TO AVOID DISMISSAL OF 17 PETITION 18 [Doc. No. 2] 19 20 Petitioner, a state prisoner proceeding pro se, has filed a Petition for Writ of Habeas 21 Corpus pursuant to 28 U.S.C. § 2254. [Doc. No. 1.] Petitioner has also filed a motion for 22 leave to proceed in forma pauperis and has submitted his trust account statement. [Doc. 23 Nos. 2–3.] For the reasons discussed, the Court GRANTS the motion to proceed in forma 24 pauperis and NOTIFIES Petitioner of his options to avoid a future dismissal of the instant 25 habeas action. 26 I. REQUEST TO PROCEED IN FORMA PAUPERIS 27 Petitioner has $0.05 on account at the California correctional institution in which he 28 is presently confined, [see Doc. No. 3 at 2], and cannot afford the $5.00 filing fee. 1 Accordingly, the Court GRANTS Petitioner’s motion to proceed in forma pauperis and 2 allows him to prosecute the above-referenced action without being required to prepay fees 3 or costs and without being required to post security. The Clerk of Court will file the 4 Petition without prepayment of the filing fee. 5 II. FAILURE TO EXHAUST STATE COURT REMEDIES 6 Upon review, it does not appear state court remedies have been exhausted as to any 7 of the four enumerated claims in the Petition. Habeas petitioners who wish to challenge 8 either their state court conviction or the length of their confinement in state prison must 9 first exhaust state judicial remedies. See 28 U.S.C. § 2254(b), (c); Granberry v. Greer, 481 10 U.S. 129, 133-34 (1987); see also Picard v. Connor, 404 U.S. 270, 275 (1971) (“[A] state 11 prisoner must normally exhaust available state judicial remedies before a federal court will 12 entertain his petition for habeas corpus.”) “A petitioner has satisfied the exhaustion 13 requirement if: (1) he has ‘fairly presented’ his federal claim to the highest state court with 14 jurisdiction to consider it,” which in this case is the California Supreme Court, “or (2) he 15 demonstrates that no state remedy remains available.” Johnson v. Zenon, 88 F.3d 828, 829 16 (9th Cir. 1996) (citations omitted); see also O’Sullivan v. Boerckel, 526 U.S. 838, 845 17 (1999) (“[S]tate prisoners must give the state courts one full opportunity to resolve any 18 constitutional issues by invoking one complete round of the State’s established appellate 19 review process.”) 20 Additionally, the claims presented in the federal courts must be the same as those 21 exhausted in state court and must also allege, in state court, how one or more of his federal 22 rights have been violated. See Picard, 404 U.S. at 276 (“Only if the state courts have had 23 the first opportunity to hear the claim sought to be vindicated in a federal habeas proceeding 24 does it make sense to speak of the exhaustion of state remedies. Accordingly, we have 25 required a state prisoner to present the state courts with the same claim he urges upon the 26 federal courts.”); see also Duncan v. Henry, 513 U.S. 364, 365-66 (1995) (“If state courts 27 are to be given the opportunity to correct alleged violations of prisoners’ federal rights, 28 they must surely be alerted to the fact that the prisoners are asserting claims under the 1 United States Constitution. If a habeas petitioner wishes to claim that an evidentiary ruling 2 at a state court trial denied him the due process of law guaranteed by the Fourteenth 3 Amendment, he must say so, not only in federal court, but in state court.”) 4 Of the four claims presented in his federal Petition, Petitioner indicates he has not 5 raised any of these claims in the California Supreme Court. [See Doc. No. 1 at 6-14.] 6 Petitioner indicates that he has filed the instant federal Petition “as a safety petition because 7 I am exhausting state remedies and I am reasonably confused on applicable law regarding 8 the federal statute of limitations for bringing Habeas Corpus Petitions,” as well as states 9 that he filed a habeas corpus petition in the California Court of Appeal which was recently 10 denied and that he intends to seek review in the California Supreme Court. [Id. at 4-5; see 11 also Doc. No. 1-2.] 12 In Rose v. Lundy, 455 U.S. 509 (1982), the United States Supreme Court held that a 13 petition which constains unexhausted claims is subject to dismissal because it violates the 14 “total exhaustion rule” required in habeas petitions brought pursuant to § 2254, but that a 15 petitioner must be permitted an opportunity to cure that defect prior to dismissal. Id. at 16 514-20. Because the one-year statute of limitations imposed on section 2254 habeas 17 petitions after Lundy was decided created a risk of a claim dismissed under Lundy 18 becoming time-barred, the Supreme Court subsequently approved of a procedure by which 19 a federal Petition could be stayed while a petitioner returned to state court to exhaust. See 20 Rhines v. Weber, 544 U.S. 269, 277–78 (2005); see also Mena v. Long, 813 F.3d 907, 912 21 (9th Cir. 2016) (“[A] district court has the discretion to stay and hold in abeyance fully 22 unexhausted petitions under the circumstances set forth in Rhines.”) The Supreme Court 23 has instructed “stay and abeyance should be available only in limited circumstances” and 24 was appropriate where: (1) “there was good cause for the petitioner’s failure to exhaust his 25 claims first in state court,” (2) the “unexhausted claims are potentially meritorious” and 26 (3) “there is no indication that the petitioner engaged in intentionally dilatory litigation 27 tactics.” Rhines, 544 U.S. at 277–78. 28 /// 1 The Court now notifies Petitioner of his options to avoid a future dismissal for 2 presenting a petition with only unexhausted claims, with a deadline set forth below. 3 I. First Option: Demonstrate Exhaustion 4 Petitioner may file papers in which he alleges he has exhausted the claim(s) in the 5 Petition. If Petitioner chooses this option, these papers are due no later than September 8, 6 2025. 7 II. Second Option: Voluntarily Dismiss the Petition 8 Petitioner may move to voluntarily dismiss his entire federal petition and return to 9 state court to exhaust his unexhausted claim(s). Petitioner may then file a new federal 10 petition containing only exhausted claims. 11 Petitioner is cautioned that any new federal petition must be filed before expiration 12 of the one-year statute of limitations. Ordinarily, a petitioner has one year from when his 13 conviction became final to file his federal petition, unless he can show that statutory or 14 equitable “tolling” applies. Duncan v. Walker, 533 U.S. 167, 176 (2001); 28 U.S.C. 15 § 2244(d).1 The statute of limitations does not run while a properly filed state habeas 16 17 1 28 U.S.C. § 2244 (d) provides: 18 (1) A 1-year period of limitation shall apply to an application for a writ of 19 habeas corpus by a person in custody pursuant to the judgment of a State court. 20 The limitation period shall run from the latest of-- 21 (A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review; 22 (B) the date on which the impediment to filing an application created by 23 State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action; 24 (C) the date on which the constitutional right asserted was initially 25 recognized by the Supreme Court, if the right has been newly recognized 26 by the Supreme Court and made retroactively applicable to cases on collateral review; or 27 (D) the date on which the factual predicate of the claim or claims presented 28 1 corpus petition is pending. 28 U.S.C. § 2244(d)(2); see also Nino v. Galaza, 183 F.3d 2 1003, 1006 (9th Cir. 1999). But see Artuz v. Bennett, 531 U.S. 4, 8 (2000) (holding that 3 “an application is ‘properly filed’ when its delivery and acceptance [by the appropriate 4 court officer for placement into the record] are in compliance with the applicable laws and 5 rules governing filings”); Bonner v. Carey, 425 F.3d 1145, 1149 (9th Cir. 2005) (holding 6 that a state application for post-conviction relief which is ultimately dismissed as untimely 7 was neither “properly filed” nor “pending” while it was under consideration by the state 8 court, and therefore does not toll the statute of limitations), as amended, 439 F.3d 993. 9 However, absent some other basis for tolling, the statute of limitations continues to run 10 while a federal 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 September 8, 2025. 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 September 8, 2025. 21 III. CONCLUSION 22 For the foregoing reasons, the Court GRANTS Petitioner’s motion to proceed in 23 forma pauperis [Doc. No. 2] and NOTIFIES Petitioner that his Petition as currently drafted 24 25 (2) The time during which a properly filed application for State post- 26 conviction or other collateral review with respect to the pertinent judgement 27 or claim is pending shall not be counted toward any period of limitation under this subsection. 28 1 ||1s subject to dismissal for failure to allege exhaustion of state court remedies. If Petitioner 2 || wishes to proceed with the instant habeas action, he must, no later than September 8, 2025, 3 notify the Court which of the options outlined above he chooses. Petitioner is cautioned 4 || that if he fails to respond to this Order, the Petition will be dismissed without prejudice. 5 || See Rose, 455 U.S. at 522. 6 7 Itis SO ORDERED. 8 Ok ? Dated: July 8, 2025 Hon. Cathy Ann Bencivengo 10 United States District Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28