MixonGivens v. People of California
- Charles Breyer
- 3:21-cv-05520
- U.S. District Court · Northern District of California
- 2
In MixonGivens v. Montgomery, Judge Breyer dismissed the mixed habeas petition without prejudice because one claim was unexhausted and petitioner did not respond.
Dominic MixonGivens's federal petition was dismissed without prejudice, leaving him able to file a new petition containing only exhausted claims; the court also terminated pending motions as moot.
What happened
Dominic MixonGivens, a state prisoner, filed a petition challenging a Santa Clara County conviction. He raised claims about juror misconduct and insufficient evidence, but had completed the state-court process only for the insufficient-evidence claim.
The court had previously dismissed the mixed petition without prejudice and gave MixonGivens options: withdraw the unexhausted claim, dismiss the entire petition and return after exhausting all claims, or possibly seek a stay by showing good cause and potential merit. MixonGivens did not respond within 28 days or request more time.
The court dismissed the petition without prejudice to filing a new federal petition containing only exhausted claims, closed the case, and terminated pending motions as moot. Judge Charles R. Breyer issued the order.
The detailed version
- MixonGivens v. People of California · No. 3:21-cv-05520
- Charles Breyer
- Sept. 29, 2021
Background
Dominic MixonGivens, identified in the caption as a state prisoner at Calipatria State Prison, filed a petition under 28 U.S.C. § 2254 seeking federal review of a conviction from the Santa Clara County Superior Court. The petition raised two federal claims: juror misconduct and insufficient evidence. The opinion states that MixonGivens had exhausted state judicial remedies only for the insufficient-evidence claim.
Prior Order and Nonresponse
On August 19, 2021, the court dismissed the mixed petition without prejudice. A mixed petition contains both exhausted and unexhausted claims. The court gave MixonGivens the choice of withdrawing the unexhausted claim and proceeding only on the exhausted claim, or dismissing the entire petition and returning to federal court with a new petition after exhausting all claims. The court also said he might be able to seek a stay if he could show good cause for not exhausting the claim earlier and that the claim had potential merit.
The court ordered MixonGivens to respond within 28 days and warned that failing to respond would result in dismissal of the entire mixed petition without prejudice to filing a new federal petition containing only exhausted claims. Forty days passed without a response or a request for an extension.
Ruling
The court dismissed the mixed petition without prejudice to filing a new federal petition containing only exhausted claims. It also directed the clerk to close the file and terminate all pending motions as moot. Judge Charles R. Breyer signed the order on September 29, 2021.
Read the full 2-page opinion on CourtListener, the free public archive maintained by the Free Law Project.