DEBORAH BARNES, Magistrate Judge.
Petitioner is a state prisoner proceeding pro se and in forma pauperis with a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Presently before the court is respondent's motion to dismiss (ECF No. 16) and petitioner's filing in response (ECF No. 18). For the reasons set forth below, the court will direct petitioner to indicate how he would like to proceed with this action.
Petitioner initiated this action by filing the petition on August 8, 2018.
Petitioner is challenging his March 10, 2017 conviction and sentence in the Yolo County Superior Court. (ECF No. 7 at 1.) Petitioner pled guilty to charges of robbery, evading a police officer, attempted kidnapping, and infliction of a corporal injury on a spouse. (ECF No. 7 at 1.) Petitioner raised four claims in the first amended petition, in claims one and two petitioner alleges the trial court imposed an illegal sentencing enhancement and improperly enhanced his sentence based on prior convictions that were unconstitutional. (ECF No. 7 at 17-18.) Petitioner's other two claims involve allegations that he is actually innocent of attempted kidnapping and inflicting corporal injury on a spouse. (ECF No. 7 at 18-19.)
Respondent moves for dismissal of claims two through four on the grounds that petitioner failed to exhaust state court remedies as to each of those claims. (ECF No. 16.) Respondent also lodged
Petitioner's filing in response acknowledges that claims two through four are unexhausted and he requests to dismiss those claims and proceed with his sole exhausted claim. (ECF No. 18.) However, before the court grants petitioner's request it will advise him of his options regarding exhaustion and warn petitioner that deleting his unexhausted claims may prevent him from bringing those claims in any future federal habeas proceedings.
There is no question that the exhaustion of state court remedies is a prerequisite to the granting of a petition for writ of habeas corpus. 28 U.S.C. § 2254(b)(1). "Under the exhaustion requirement, a habeas petitioner challenging a state conviction must first attempt to present his claim in state court."
The United States Supreme Court has held that a federal district court may not entertain a petition for habeas corpus unless the petitioner has exhausted state remedies with respect to each of the claims raised.
Because the petition contains unexhausted claims, this court is required to give petitioner the choice of exhausting the unexhausted claims by returning to state court or abandoning the unexhausted grounds and pursuing the exhausted ground in federal court.
Accordingly, petitioner must elect to proceed in one of two ways. First, petitioner may choose to dismiss the entire petition without prejudice. However, petitioner is advised that dismissal of the present proceeding (even dismissal "without prejudice") could contribute toward a statute of limitations bar against any federal petition he might subsequently file.
Alternatively, petitioner may choose to file an amended petition raising only the exhausted claim. However, petitioner is cautioned that should he choose this alterative, he may risk forfeiting consideration of the unexhausted claims in this or any other federal habeas proceedings.
Accordingly, PETITIONER IS HEREBY ORDERED TO advise the court, within thirty days of the date of service of this order, whether he wishes to return to state court to fully exhaust administrative remedies before proceeding with this action, or in the alternative, whether he wishes to proceed only on the exhausted portion of his petition. Petitioner is warned that failure to respond to the court's order may result in a recommendation that this action be dismissed.