Opinion
Civil No. 05cv2148-JAH (NLS).
February 28, 2006
REPORT AND RECOMMENDATION TO DENY AS MOOT RESPONDENT'S MOTION TO DISMISS THE PETITION FOR FAILURE TO EXHAUST STATE COURT REMEDIES
Before the Court is respondent's Motion to Dismiss Petition for Writ of Habeas Corpus, as well as petitioner's opposition thereto. Respondent contends the Petition should be dismissed because petitioner did not exhaust his available remedies in state court before filing his Petition in federal court. In opposition, petitioner argues the Court should deny respondent's Motion because the California Supreme Court recently denied his state habeas petition, so his claims are now exhausted. For the reasons outlined below, this Court recommends the district court DENY respondent's Motion to Dismiss as moot and order respondent to address the merits of the Petition.
Petitioner labeled his opposition "Traverse to Respondent's Motion to Dismiss the Petition for Write of Habeas Corpus." (Doc. No. 8.)
Background
The Petition in this case was filed on November 18, 2005. The Petition challenges on due process and sufficiency of the evidence grounds a decision by the California Board of Prison Terms (the "Board") which found petitioner unsuitable for parole. Ground Two of the Petition indicates petitioner was still in the process of exhausting his state court remedies when he filed his Petition in this Court and had been waiting for almost a year for the California Supreme Court to issue a decision in his case. The Petition requests exemption from the exhaustion requirement because petitioner believes he has "served the full term of confinement" and is being held "in violation of the United States Constitution." (Pet'n, at 7.)
Discussion
The exhaustion of available state remedies is a prerequisite to a federal court's consideration of claims presented in a habeas corpus proceeding. 28 U.S.C. § 2254(b) (West 2006). In pertinent part, section 2254(b)(1)(A) states as follows: "An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that . . . the applicant has exhausted the remedies available in the courts of the State. . . ." 28 U.S.C. § (b)(1)(A) (West 2006). A federal habeas petition filed by a state prisoner containing unexhausted claims is subject to dismissal by the district court without prejudice to the petitioner filing a second or successive petition after completing exhaustion in the state court system. Slack v. McDaniel, 529 U.S. 473, 488 (2000); High v. Ignacio, 408 F.3d 585, 589 n. 4 (9th Cir. 2005); Hill v. Alaska, 297 F.3d 895, 898-899 (9th Cir. 2002).
Respondent argues the Petition should be dismissed because a petitioner "may not complete the exhaustion process in state court after filing a then-unexhausted federal petition." (Resp.'s Mot., at 3.) To support this position, respondent cites the following quote from the Ninth Circuit's decision in Gatlin v. Madding, 189 F.3d 882 (9th Cir. 1999), which was, in turn, quoting an earlier decision in Brown v. Maass, 11 F.3d 914 (9th Cir. 1993): "The appropriate time to assess whether a prisoner has exhausted his state remedies is when the federal habeas petition is filed, not when it comes on for hearing in the district court or court of appeals." Gatlin, 189 F.3d at 889; Brown, 11 F.3d at 915. However, the facts and circumstances of Gatlin and Brown are not analogous to those at issue here, so respondent's reliance on this quotation is misplaced. In both of these cases, the Ninth Circuit was being asked to consider and rely on events not considered by the district court because they occurred after the district court issued the order being challenged on appeal. In Gatlin, for example, a habeas petitioner appealed the district court's order dismissing his habeas petition for failure to exhaust. Id. at 884. The main issue before the Ninth Circuit was whether petitioner had fairly presented his federal constitutional claim to the California Supreme Court on direct review in order to satisfy the exhaustion requirement. Id. at 887-888. The Ninth Circuit agreed with the district court's finding petitioner's attempt to incorporate claims by reference into his petition for direct review before the California Supreme Court did not satisfy the exhaustion requirement because California Rules of Court prohibit the incorporation of authorities or arguments from another document. Id. at 888. Petitioner argued the Ninth Circuit should consider the California Supreme Court's summary denial of his state habeas petition because the California Supreme Court had violated its own rule by actually considering the merits of the arguments he incorporated by reference. However, petitioner had not even filed this state habeas petition until after he filed his notice of appeal in the Ninth Circuit. The Ninth Circuit declined to consider the argument because neither document was before the district court when it issued the order challenged on appeal. Id. at 889.
Here, it is true petitioner had not completely exhausted his state court remedies before he filed his federal Petition. Based on information provided in the Petition, as well as the moving and opposing papers, it is apparent petitioner attempted to exhaust his state court remedies by filing a habeas petition in the California Supreme Court before he filed his federal Petition. However, it is also apparent petitioner filed his federal Petition before he received a ruling from the California Supreme Court due to impatience and frustration because he had been waiting for a ruling for almost a year and believes he has already "served the full term of confinement" and is being held "in violation of the United States Constitution." (Pet'n, at 7.) Petitioner now contends in opposition to respondent's Motion he has "totally exhausted" his state court remedies. (Traverse to Resp.'s Mot. to Dismiss, at 2.) To support his position, petitioner submitted the California Supreme Court's recent denial of his habeas petition as an attachment to his opposition to respondent's Motion to Dismiss.
Under the circumstances presented, this Court cannot recommend the district court dismiss the Petition for failure to exhaust. Federal Rule of Civil Procedure 15 applies to habeas proceedings in the Ninth Circuit. Anthony v. Cambra, 236 F.3d 568, 576 (9th Cir. 2000). In pertinent part, Federal Rule 15(a) provides as follows: "A party may amend the party's pleadings once as a matter of course at any time before a responsive pleading is served. . . ." Fed.R.Civ.P. 15(a) (West 2006). "[A] motion to dismiss is not a responsive pleading within the meaning of the Federal Rules of Civil Procedure." Morrison v. Mahoney, 399 F.3d 1042, 1047 (9th Cir. 2005). See also Allwaste, Inc. v. Hecht, 65 F.3d 1523, 1530 (9th Cir. 1995). In the Ninth Circuit, pleadings submitted by pro se petitioners must be construed liberally. In addition, federal district courts in the Ninth Circuit have "a duty to ensure that pro se litigants do not lose their right to a hearing on the merits of their claim due to ignorance of technical procedural requirements." Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir. 1988).
The Federal Rules of Civil Procedure "may be applied" in habeas cases "when appropriate" and "to the extent that they are not inconsistent" with the Rules Governing Section 2254 Cases. Rule 11, 28 U.S.C. foll. § 2254 (West 2006).
Because it is apparent petitioner has exhausted his state court remedies at this early point in the proceedings, any dismissal for failure to exhaust would be without prejudice to petitioner paying the filing fee once again and refiling the same petition with a simple amendment alleging exhaustion based on the California Supreme Court's recent denial of his state habeas petition. However, petitioner's opposition to respondent's Motion, along with the attached denial of his state petition, could be construed as an attempt to amend the Petition to allege exhaustion. See, e.g., Eldridge v. Block, 832 F.2d 1132, 1137 (9th Cir. 1987) (finding the district court abused its discretion by dismissing a pro se prisoner's complaint rather than construing the submission of additional factual allegations as an attempt to amend the complaint). Petitioner is entitled to do so "once as a matter of course" because, as outlined above, respondent's Motion to Dismiss is not considered a responsive pleading for purposes of Rule 15(a). At this early stage of the proceedings, the most expeditious course for all concerned would be to deem petitioner's Traverse and the attached denial of his state petition as an amendment to the Petition and to then proceed to a consideration of the Petition on the merits. For this reason, it is recommended the district court DENY respondent's Motion to Dismiss as moot and order respondent to address the merits of the Petition.
Federal Rule 1 requires courts to construe and administer the Federal Rules of Civil Procedure "to secure the just, speedy, and inexpensive determination of every action." Fed.R.Civ.P. 1 (West 2006).
Conclusion
This report and recommendation of the undersigned Magistrate Judge is submitted to the United States District Judge assigned to this case, pursuant to the provision of
Title 28, United States Code, section 636(b)(1). For the reasons outlined above, it is recommended the district court:
1. Deem petitioner's opposition to respondent's Motion to Dismiss, as well as the attached denial of petitioner's state habeas petition by the California Supreme Court, as an amendment to the Petition to allege complete exhaustion of state court remedies;
2. DENY respondent's Motion to Dismiss Petition for Writ of Habeas Corpus as moot; and
3. Order respondent to address the merits of the Petition.
IT IS HEREBY ORDERED THAT:
1. No later than March 17, 2006, any party to this action may file written objections with the Court and serve a copy on all parties. The document should be captioned "Objections to Report and Recommendation."
2. Any reply to the objections shall be filed with the Court and served on all parties no later than March 24, 2006. The parties are advised that failure to file objections within the specified time may waive the right to raise those objections on appeal of the Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
IT IS SO ORDERED.