Unreported / Non-Citable
Background
Jesus Manuel Rodriguez, a California state prisoner proceeding by and through counsel, filed a Petition for a Writ of Habeas Corpus under 28 U.S.C. § 2254 in the United States District Court for the Southern District of California, naming Andre Gonzalez, Acting Warden, as respondent. He neither paid the $5.00 filing fee nor submitted a request to proceed in forma pauperis, and the court explained that it cannot proceed until the petitioner has done one or the other, making the case subject to dismissal without prejudice under Rule 3(a) of the Rules Governing § 2254 Cases.
The petition itself disclosed a mixed exhaustion posture: Rodriguez indicated that the first three claims had been presented to the state supreme court, but he had yet to exhaust state court remedies as to claim four. He stated that, along with the petition, he was filing a motion for a stay while he exhausted state court remedies, but the court noted that it had not received any such motion.
The Court’s Holding
The court dismissed the case without prejudice. Under Rule 3(a), because the court cannot proceed until the petitioner has either paid the $5.00 filing fee or qualified to proceed in forma pauperis, the habeas case was subject to dismissal without prejudice. The court separately invoked Rule 4 of the Rules Governing § 2254 Cases, which authorizes summary dismissal when it plainly appears from the face of the petition and any attached exhibits that the petitioner is not entitled to relief in the district court.
Applying Rule 4, the court concluded that it plainly appeared from the petition that Rodriguez was not presently entitled to federal habeas relief, because he had not satisfied the filing fee requirement and had not alleged exhaustion of state court remedies as to all claims. The court then outlined the two methods potentially available to a petitioner with a mixed petition to obtain a stay. Under the 'stay and abeyance' procedure of Rhines v. Webber, 544 U.S. 269, 277-78 (2005), the petitioner must demonstrate arguably meritorious claims he wishes to return to state court to exhaust, diligent pursuit of state remedies, and good cause for the failure to timely exhaust.
Under the 'withdrawal and abeyance' procedure of King v. Ryan, 564 F.3d 1133, 1141-42 (9th Cir. 2009), the petitioner withdraws the unexhausted claims and asks the court to stay the proceedings and hold the fully exhausted petition in abeyance while returning to state court; after exhaustion, the petitioner must seek permission to amend, and the newly exhausted claims must be timely or 'relate back' to timely claims through a common core of operative facts, quoting Mayle v. Felix, 545 U.S. 644, 659 (2005). Rather than dismissing with prejudice, the court ordered that to proceed with the action, Rodriguez must either pay the $5.00 filing fee or submit an in forma pauperis application and file a motion for stay and abeyance no later than December 21, 2026.
Key Takeaways
- A § 2254 petition cannot proceed without payment of the $5.00 filing fee or an approved in forma pauperis application; failure on that threshold alone makes the case subject to dismissal without prejudice under Rule 3(a).
- Rule 4 permits summary dismissal when the face of the petition plainly shows the petitioner is not entitled to relief, which here included both an unsatisfied fee requirement and a failure to allege exhaustion of all claims.
- A petition containing both exhausted and unexhausted claims is a mixed petition, and a petitioner who wants to preserve it must actually file a stay motion; merely referencing one in the petition is not enough.
- The Rhines 'stay and abeyance' route requires arguably meritorious claims, diligence, and good cause, while the King 'withdrawal and abeyance' route drops the good-cause showing but requires newly exhausted claims to be timely or relate back to the original claims.
- Because the dismissal was without prejudice and the court set a December 21, 2026 deadline to cure the deficiencies, Rodriguez retains the ability to pursue federal habeas relief if he complies.
Why It Matters
The order is a practical illustration of how federal courts police the twin gatekeeping requirements of § 2254 practice: the filing fee (or in forma pauperis status) and total exhaustion of state remedies. It confirms that even counseled petitions will be dismissed at the outset when these prerequisites are unmet, and that a passing reference to a stay motion does not substitute for filing one.
It also lays out the two Ninth Circuit-sanctioned frameworks — Rhines stay and abeyance and King withdrawal and abeyance — for handling mixed petitions, giving practitioners a concise roadmap for preserving federal review while state exhaustion continues.