John Christopher Brown v. Josie Gastelo

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES - GENERAL

Case No. CV 20-2051-PA (PJW) Date July 9, 2020

Title John Christopher Brown v. Josie Gastelo, Warden

Present: The Honorable PATRICK J. WALSH, U.S. MAGISTRATE JUDGE

Erica Valencia N/A N/A

Deputy Clerk Court Reporter / Recorder Tape No.

Attorneys Present for Petitioner: Attorneys Present for Respondent:

None Present None Present

Proceedings: Respondent’s Motion to Dismiss (In Chambers)

On March 2, 2020, Petitioner filed a Petition for Writ of Habeas

Corpus, in which he raised four claims of relief. (Petition at 5-6.)

On June 2, 2020, Respondent filed a motion to dismiss on the ground

that Petitioner did not present Ground Four of the Petition to the

California Supreme Court and that, therefore, the claim is

unexhausted.

In Ground Four, Petitioner claims that the prosecution’s failure

to disclose favorable evidence and its presentation of false evidence

at trial deprived him of due process. (Petition at 5.) Petitioner

acknowledges that he did not raise this claim in his petition for

review in the state supreme court (Petition at 3), and the copy of the

petition for review that he attached to his federal habeas petition

bears this out. (See Petition, Doc. 1-3 at 1-75.) Nor has he filed a

habeas corpus petition in state court.

To satisfy exhaustion requirements, a petitioner must demonstrate

that his claims have been “fairly presented” to the highest state

court so that the state court can address them on the merits. See

Picard v. Connor, 404 U.S. 270, 275 (1971); see also O’Sullivan v.

Boerckel, 526 U.S. 838, 844 (1999) (requiring that state prisoners

give state courts a “fair opportunity to act on their claims”).

Because Ground Four has not been exhausted, the Petition is a “mixed”

petition that is subject to dismissal. Jefferson v. Budge, 419 F.3d

1013, 1015 (9th Cir. 2005) (“[A] mixed petition, i.e., a petition

raising both exhausted and unexhausted claims, must be dismissed for

failure to completely exhaust available state remedies.”).

Consequently, the Court orders Petitioner to make an election

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES - GENERAL

Case No. CV 20-2051-PA (PJW) Date July 9, 2020

Title John Christopher Brown v. Josie Gastelo, Warden

1. Petitioner may request a stay and abeyance of the mixed

Petition while he exhausts Ground Four in the California

Supreme Court. See Rhines v. Weber, 544 U.S. 269, 277

(2005) (holding that district courts have the discretion to

stay and hold in abeyance, rather than dismiss, a mixed

habeas petition). Such a stay is not automatic, however.

This Court can grant a stay only if Petitioner demonstrates

“good cause” for the failure to exhaust in state court, that

the claims are not plainly meritless, and that he is not

using intentionally dilatory litigation tactics.

2. Petitioner may voluntarily dismiss Ground Four of his

Petition, and the Court will proceed to the merits of his

remaining exhausted claims. If he chooses this option,

Petitioner is warned that this Court will likely be

foreclosed from ever considering Ground Four in a successive

petition.

Petitioner has until July 30, 2020, to make an election as to how he

wants to proceed on his Petition. If Petitioner chooses option 1--the

stay and abeyance–-he must also explain why he did not raise Ground

Four in the California Supreme Court. If Petitioner does nothing, the

Court will recommend that the Petition be dismissed as a mixed

petition. Accordingly, Respondent’s Motion to Dismiss is DENIED

without prejudice, pending an election by Petitioner.

cc:

John Christopher Brown Julie Ann Harris

No. BD1909 CAAG - Office of the Attorney General

P.O. Box 8101 300 South Spring Street, Suite 1702

San Luis Obispo, CA 93409 Los Angeles, CA 90013

:

Initials of Preparer EV

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