Cooper v. Macomber

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
DANTEA TERRELL COOPER,
Petitioner,
v.
JEFFREY MACOMBER, Secretary,
Respondent.
Case No.: 26-cv-0996-AJB-BLM
ORDER:
(1) DIRECTING CLERK TO
SUBSTITUTE RESPONDENT AND
(2) NOTIFYING PETITIONER OF
OPTIONS TO AVOID DISMISSAL OF
AMENDED PETITION
On February 17, 2026, Petitioner Dantea Terrell Cooper (“Petitioner”), who
indicates he is currently on parole arising from a San Diego County Superior Court
judgment of conviction, proceeding pro se, filed a Petition for a Writ of Habeas Corpus
under 28 U.S.C. § 2254 challenging his 2023 judgment of conviction in case number
SCD295921 and paid the $5.00 filing fee. (Doc. Nos. 1; 1-12.) On March 2, 2026, the Court
dismissed this habeas action without prejudice because Petitioner failed to sign the petition
under penalty of perjury and instructed him that to have the case reopened, he must submit
an Amended Petition that cured the identified pleading deficiency on or before April 30,
2026. (Doc. No. 3.) On March 13, 2026, Petitioner submitted an Amended Petition.
(Doc. No. 4.)
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I. 	SUBSTITUTION OF RESPONDENT
In the Amended Petition, Petitioner now names “Rodriguez” and Attorney General
Rob Bonta as Respondents to this federal habeas action (see Doc. No. 1 at 1) and Petitioner
specifically asks the Court to modify the name of respondent to Rodriguez, noting “[m]y
parole agent is now Alejandro Rodriguez” (id. at 15).
On federal habeas, a state prisoner must name the state officer having custody of
him as the respondent and if a “petitioner is on probation or parole, he may name his
probation or parole officer ‘and the official in charge of the parole or probation agency, or
the state correctional agency, as appropriate.’” Ortiz-Sandoval v. Gomez, 81 F.3d 891, 894
(9th Cir. 1996), citing and quoting R. 2, Rules Governing Section 2254 Cases (2019) and
advisory committee’s note. Because Petitioner’s parole officer has changed, so has the
Respondent to this action. However, in order to conform with the requirements of Rule
2(a) of the Rules Governing § 2254 Cases and to avoid changing the Respondent if
Petitioner’s parole officer changes again, the Court hereby ORDERS the substitution of
Jeffrey 	Macomber, 	Secretary 	of 	the 	California 	Department 	of 	Corrections 	and
Rehabilitation, as Respondent. See id. (stating that the respondent in § 2254 proceedings
may be the chief officer in charge of state penal institutions).
Additionally, the Attorney General of the State of California is not a proper
respondent in this action. Again, Rule 2 of the Rules following § 2254 provides that the
state officer having custody of the petitioner shall be named as respondent. See R. 2(a),
Rules Governing Section 2254 Cases (2019). However, “[i]f the petitioner is not yet in
custody--but may be subject to future custody--under the state-court judgment being
contested, the petition must name as respondents both the officer who has current custody
and the attorney general of the state where the judgment was entered.” R. 2(b), Rules
Governing Section 2254 Cases (2019). Here, there is no basis for Petitioner to have named
the California Attorney General as a respondent in this action.
///
///
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II. 	FAILURE TO EXHAUST STATE COURT REMEDIES
Upon review, it does not appear that Petitioner has exhausted state court remedies
as to each of the five enumerated claims in the Amended Petition. Habeas petitioners who
wish to challenge either their state court conviction or the length of their confinement in
state prison must first exhaust state judicial remedies. See 28 U.S.C. § 2254(b), (c);
Granberry v. Greer, 481 U.S. 129, 133–34 (1987); see also Picard v. Connor, 404 U.S.
270, 275 (1971) (“[A] state prisoner must normally exhaust available state judicial
remedies before a federal court will entertain his petition for habeas corpus.”). “A petitioner
has satisfied the exhaustion requirement if: (1) he has ‘fairly presented’ his federal claim
to the highest state court with jurisdiction to consider it,” which in this case is the California
Supreme Court, “or (2) he demonstrates that no state remedy remains available.” Johnson
v. Zenon, 88 F.3d 828, 829 (9th Cir. 1996) (citations omitted); see also O’Sullivan v.
Boerckel, 526 U.S. 838, 845 (1999) (“[S]tate prisoners must give the state courts one full
opportunity to resolve any constitutional issues by invoking one complete round of the
State’s established appellate review process.”).
Additionally, the claims presented in the federal courts must be the same as those
exhausted in state court and a petitioner must also allege, in state court, how one or more
of his federal rights have been violated. See Picard, 404 U.S. at 276 (“Only if the state
courts have had the first opportunity to hear the claim sought to be vindicated in a federal
habeas proceeding does it make sense to speak of the exhaustion of state remedies.
Accordingly, we have required a state prisoner to present the state courts with the
same claim he urges upon the federal courts.”); see also Duncan v. Henry, 513 U.S. 364,
365–66 (1995) (“If state courts are to be given the opportunity to correct alleged violations
of prisoners’ federal rights, they must surely be alerted to the fact that the prisoners are
asserting claims under the United States Constitution. If a habeas petitioner wishes to claim
that an evidentiary ruling at a state court trial denied him the due process of law guaranteed
by the Fourteenth Amendment, he must say so, not only in federal court, but in state
court.”).
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Here, Petitioner indicates that he raised Grounds One through Four in a habeas
petition filed in the California Supreme Court (see Doc. No. 4 at 7–10), but he does not
indicate whether he raised Ground Five in the California Supreme Court (see id. at 11).1
As such, it appears the Amended Petition contains both exhausted and unexhausted claims
and Petitioner has failed to demonstrate exhaustion as to all claims raised.
In Rose v. Lundy, 455 U.S. 509 (1982), the United States Supreme Court held that a
petition which did not contain only exhausted claims is subject to dismissal because it
violates the “total exhaustion rule” required in habeas petitions brought pursuant to § 2254,
but that a petitioner must be permitted an opportunity to cure that defect prior to dismissal.
Id. at 514–20. Having preliminarily determined the Petition contains both exhausted and
unexhausted claims, the Court notifies Petitioner of his options to avoid a future dismissal
for failing to exhaust state court remedies as to each of the claims alleged in the Amended
Petition.
A. 	First Option: Demonstrate Exhaustion
Petitioner may file papers in which he alleges he has exhausted the claims in the
Amended Petition. 	If Petitioner chooses this option, these papers are due no later than
May 18, 2026.
B. 	Second Option: Voluntarily Dismiss the Petition
Petitioner may move to voluntarily dismiss his entire federal petition and return to
state court to exhaust his unexhausted claims. Petitioner may then file a new federal petition
containing only exhausted claims. See Rose v. Lundy, 455 U.S. 509, 510, 520–21 (1982)
(stating that a petitioner who files a mixed petition may dismiss his petition to “return[] to
state court to exhaust his claims”).
1 In contrast, in the original federal Petition, Petitioner raised four enumerated claims for habeas relief and
alleged that each of those four claims had been presented to the California Supreme Court. (See Doc. No.
1 at 5–11.)
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Petitioner is cautioned that any new federal petition must be filed before expiration
of the one-year statute of limitations. Ordinarily, a petitioner has one year from when his
conviction became final to file his federal petition, unless he can show that statutory or
equitable “tolling” applies. Duncan v. Walker, 533 U.S. 167, 176 (2001); 28 U.S.C.
§ 2244(d).2 The statute of limitations does not run while a properly filed state habeas corpus
petition is pending. 28 U.S.C. § 2244(d)(2); see also Nino v. Galaza, 183 F.3d 1003, 1006
(9th Cir. 1999); but see Artuz v. Bennett, 531 U.S. 4, 8 (2000) (holding that “an application
is ‘properly filed’ when its delivery and acceptance [by the appropriate court officer for
placement into the record] are in compliance with the applicable laws and rules governing
filings”); Bonner v. Carey, 425 F.3d 1145, 1149 (9th Cir. 2005) (holding that a state
application for post-conviction relief which is ultimately dismissed as untimely was neither
“properly filed” nor “pending” while it was under consideration by the state court, and
therefore does not toll the statute of limitations), as amended, 439 F.3d 993. However,
absent some other basis for tolling, the statute of limitations continues to run while a federal
habeas petition is pending. Duncan, 533 U.S. at 181–82.
2 28 U.S.C. § 2244 (d) provides:
(1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus
by a person in custody pursuant to the judgment of a State court. The limitation period shall
run from the latest of--
(A) the date on which the judgment became final by the conclusion of direct review or
the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by State action in
violation of the Constitution or laws of the United States is removed, if the applicant
was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the
Supreme Court, if the right has been newly recognized by the Supreme Court and made
retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have
been discovered through the exercise of due diligence.
(2) The time during which a properly filed application for State post-conviction or other
collateral review with respect to the pertinent judgement or claim is pending shall not be
counted toward any period of limitation under this subsection.
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If Petitioner chooses this second option, he must file a voluntary dismissal with this
Court no later than May 18, 2026.
C. 	Third Option: Formally Abandon Unexhausted Claims
Petitioner may formally abandon his unexhausted claim(s) and proceed with his
exhausted ones. See Rose, 455 U.S. at 510, 520–21 (stating that a petitioner who files a
mixed petition may “resubmit[] the habeas petition to present only exhausted claims”). If
Petitioner chooses this third option, he must file a pleading with this Court no later than
May 18, 2026. Petitioner is cautioned that once he abandons his unexhausted claim(s), he
may lose the ability to ever raise them in federal court. See Slack v. McDaniel, 529 U.S.
473, 488 (2000) (stating that a court’s ruling on the merits of claims presented in a first
§ 2254 petition renders any later petition successive); see also 28 U.S.C. § 2244 (a)–(b).
D. 	Fourth Option: File a Motion to Stay the Federal Proceedings
Petitioner may file a motion to stay this federal proceeding while he returns to state
court to exhaust his unexhausted claim(s). There are two methods available to Petitioner:
the “stay and abeyance” procedure and the “withdrawal and abeyance” procedure.
If Petitioner wishes to use the “stay and abeyance” procedure he must ask the Court
to stay his mixed petition while he returns to state court to exhaust. Under this procedure
he must demonstrate there are arguably meritorious claim(s) which he wishes to return to
state court to exhaust, that he is diligently pursuing his state court remedies with respect to
those claim(s), and that good cause exists for his failure to timely exhaust his state court
remedies. Rhines v. Weber, 544 U.S. 269, 277–78 (2005).
If Petitioner wishes to use the “withdrawal and abeyance” procedure, he must
voluntarily withdraw his unexhausted claim(s), ask the Court to stay the proceedings and
hold the fully exhausted petition in abeyance while he returns to state court to exhaust, and
then seek permission to amend his petition to include the newly exhausted claim(s) after
exhaustion is complete. King v. Ryan, 564 F.3d 1133, 1141–42 (9th Cir. 2009). Although
under this procedure Petitioner is not required to demonstrate good cause for his failure to
timely exhaust, the newly exhausted claim(s) must be either timely under the statute of
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limitations or “relate back” to the claims in the fully-exhausted petition—i.e., they must
share a “common core of operative facts” with the previously exhausted claim(s). Id. at
1142–43, quoting Mayle v. Felix, 545 U.S. 644. 659 (2005). If Petitioner chooses this fourth
option, he must file a pleading with this Court no later than May 18, 2026.
III. 	CONCLUSION AND ORDER
For 	the 	foregoing 	reasons, 	the 	Court 	ORDERS 	the 	substitution 	of 	Jeffrey
Macomber, Secretary of the California Department of Corrections and Rehabilitation as
Respondent in place of “Cooper,” “Rodriguez,” and “Rob Bonta.” The Clerk of the Court
will modify the docket to reflect “Jeffrey Macomber, Secretary” in place of the former
respondents. Further, the Court NOTIFIES Petitioner that his Amended Petition as
currently drafted is subject to dismissal for failure to allege exhaustion of state court
remedies. If Petitioner wishes to proceed with this habeas action, he must, no later than
May 18, 2026, notify the Court which of the options outlined above he chooses. Petitioner
is cautioned that if he fails to respond to this Order, the Amended Petition will be subject
to dismissal without prejudice. See Lundy, 455 U.S. at 522.
IT IS SO ORDERED.
Dated: March 18, 2026
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