The opinion of the court was delivered by: Hayes, Judge
The matter before the Court is the review of the Report and Recommendation (#24) filed on July 25, 2006 by United States Magistrate Judge William McCurine, Jr. recommending that Respondent's Motion to Dismiss Petition for Writ of Habeas Corpus be granted in part and denied in part.
On April 11, 2005, Petitioner Charles Andrew Williams, a state prisoner proceeding pro se, filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 raising the following four grounds for relief: 1) ineffective assistance of appellate counsel, 2) ineffective assistance of trial counsel, 3) inducement of a plea of guilty from a minor who did not knowingly or intelligently plead guilty, and 4) a claim that his sentencing as an adult violated the Eighth Amendment prohibition against cruel and unusual punishment.
On November 15, 2005, Respondent filed a Motion to Dismiss Petition for Writ of Habeas Corpus on the grounds that Petitioner is procedurally barred from seeking federal court relief because he failed to exhaust his state court remedies. Respondent further asserted that this Court should not hold this action in abeyance if the Court finds some claims are exhausted.
On December 12, 2005, Petitioner filed an opposition to Respondent's Motion to Dismiss asserting that he had exhausted his state court remedies.
On July 25, 2006, United States Magistrate Judge William McCurine, Jr. filed a Report and Recommendation concluding that "Petitioner has failed to exhaust all but one claim: ineffective assistance of trial counsel on the narrow issue of trial counsel's failure to have an MRI examined by experts. All other claims are unexhausted. Therefore, this Court recommends that the Motion to Dismiss be GRANTED as to the unexhausted claims and DENIED as to the single exhausted claim." (Report and Recommendation at 11.) The Magistrate Judge further recommended that "Petitioner's petition NOT be stayed or held in abeyance to allow Petitioner to exhaust all state claims [and that] Petitioner be given the opportunity to delete his unexhausted claims and go forward solely on his exhausted claim." (Report and Recommendation at 13-14.) The parties were notified of the time within which to file objections to the Report and Recommendation.
On August 25, 2006, this Court signed an order allowing Joel Golden to represent Petitioner in this proceeding.
On October 5, 2006, the Court entered an order granting Petitioner until November 17, 2006 to file objections to the Report and Recommendation of the Magistrate Judge and Respondent until December 12, 2006 to file any reply.
On November 17, 2006, Petitioner filed Objections to the July 25, 2006 Report and Recommendation. Petitioner asserts that he has exhausted all of the claims presented in the federal petition. In the alternative, Petitioner asserts that he can show good cause for failure to exhaust his state court remedies. Petitioner requests that the Court grant him permission to file a declaration setting forth the facts which will establish good cause for the failure to exhaust. Petitioner specifically stated that he does not object to the portion of the Report and Recommendation in which the Magistrate Judge concludes that Petitioner has exhausted his claim set forth in Ground Two for "ineffective assistance of trial counsel on the narrow issue of trial counsel's failure to have an MRI examined by experts." (Report and Recommendation at 11.)
Respondent filed no response to Petitioner's objections and no objection to the conclusion of the Magistrate Judge that Petitioner has exhausted his claim in Ground Two for "ineffective assistance of trial counsel on the narrow issue of trial counsel's failure to have an MRI examined by experts." (Report and Recommendation at 11.)
The duties of the district court in connection with the Report and Recommendation of a Magistrate Judge are set forth in Rule 72(b) of the Federal Rules of Civil Procedure and 28 U.S.C. § 636(b)(1). The district court "must make a de novo determination of those portions of the report . . . to which objection is made," and "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate." 28 U.S.C. § 636(b)(1)(C). The failure to file objections relieves the trial court of its burden to give de novo review to factual findings; conclusions of law must still be reviewed de novo. Brilla v. Ervin, 886 F.2d 1514, 1518 (9th Cir. 1989) citing Britt v. Simi Valley Unified School Dist., 708 F.2d 452, 454 (9th Cir. 1983).
On March 5, 2001, Petitioner took his father's .22 caliber revolver and 40 rounds of ammunition to Santana High School in Santee, California. At approximately 9:20 a.m., Petitioner went into the boys bathroom in the school, loaded the gun, and began to shoot from the bathroom door at students and school personnel. Petitioner went back into the bathroom four times to reloaded the gun, and continued to shoot. Petitioner shot and killed two students and wounded 13 others. After deputies arrived at the school, Petitioner surrendered his weapon and was taken into custody.
On March 7, 2001, Petitioner was charged in the Superior Court, County of San Diego, State of California in a felony complaint with two counts of murder, thirteen counts of attempted murder, and thirteen counts of assault with a firearm in violation of the California Penal Code. Counts One and Two each contained the allegations the Petitioner intentionally and personally discharged a firearm causing great bodily injury or death within the meaning of Penal Code section 12022.53(d) and special circumstance allegations of lying in wait and multiple murder under Penal Code section 190.2. Personal firearm use enhancement allegations accompanied all counts. All charged offenses were alleged to have occurred on March 5, 2001 when Petitioner was 15 years old. Because Petitioner was alleged to have been over fourteen years of age at the time of the offenses and the complaint alleged the commission of an offense listed in Welfare and Institutions Code § 602(b), the complaint was required to be filed in a court of criminal jurisdiction. (Lodgment 1.)
On March 30, 2001, Petitioner filed a demurrer in the Superior Court moving the trial court to dismiss the complaint on the grounds that the State of California initiative Proposition 21 which required direct filing in adult court under specified special circumstances was unconstitutional. (Lodgment 1.) On April 27, 2001, Petitioner's motion was denied by the Superior Court. (Lodgment 1.) On May 23, 2002, the Court of Appeals Fourth Appellate District of the State of California denied Petitioner's writ of prohibition from the order of the Superior Court denying Petitioner's demurrer. (Lodgment 1.)
On June 20, 2002, Petitioner entered pleas of guilty to two counts of first degree murder with the use of firearm admitting to the special circumstance of multiple murder and thirteen counts of premeditated attempted murder with the use of a firearm admitting that he inflicted great bodily injury on the thirteen attempted murder victims. The written Plea of Guilty signed by the Petitioner and defense counsel stated that the maximum punishment as a result of my plea was "425- Life" terms. In the description of the facts, Petitioner wrote "at age 15 Brought a gun to school & intentionally shot 15 people killing 2 causing great bodily injury to 13 other. I stipulate to the police reports as a further factual basis. I did so willfully, deliberately & w/premeditation." (Lodgment 1 at 514.)
On August 15, 2002, the trial court sentenced Petitioner to 25 years to life on Count One, with a consecutive term of 25 years to life for the violation of Penal Code § 12022.53(d). The same term was imposed with respect to Count Two and ordered to run concurrent with Count One. Sentences of 25 years to life were imposed on each of Counts 3-15 and ordered to run concurrently. (Lodgment 1 and Lodgment 2.)
On May 3, 2003, Petitioner through counsel appealed his conviction to the Court of Appeal of the State of California raising the following four grounds for relief: 1) the trial court committed reversible error by not ordering a fitness study before sentencing him as an adult pursuant to Penal Code §§ 1170.16 and 1170.19 because at the time of the offense Petitioner's culpability was mitigated by immaturity and he was amenable to treatment as a juvenile; 2) Penal Code § 190.5 is expressly limited to persons who were over 16 but under 18 years of age at the time of the offense, therefore the finding of special circumstances was unauthorized and the allegations must be stricken; 3) the refusal to strike the Welfare and Institutions Code § 602(b) allegation or to stay the special circumstances allegations, and the imposition of an adult sentence, constituted an abuse of discretion where Petitioner's lack of developmental maturity affected his culpability and warranted treatment as a juvenile; and 4) imposition of the enhancements pursuant to Penal Code § 12022.53(d) must be reversed because it results in a punishment which is cruel and unusual when applied to a juvenile subject to the direct file provisions of Welfare and Institutions Code §§ 602(b) and 707(d)(2). (Lodgment 3.)
On January 30, 2004, the California Court of Appeal affirmed the judgment of the trial court in an unpublished opinion. (Lodgment 5.) Petition for Rehearing was denied. (Lodgment 6 and 7.)
On March 5, 2004, Petitioner through counsel, filed a Petition for Review in the Supreme Court of the State of California. The petition raised the single claim as follows: "[i]f Penal Code section 190.5 precludes special circumstances finding as to an offender who is under the age of 16 at the time of the offense, is such an allegation, made solely to invoke the mandatory direct file provision of Welfare and Institutions Code section 602, subdivision (b), and to avoid the reverse remand procedures pursuant to Penal Code Section 1170.19, authorized to preclude a juvenile disposition instead of an adult sentence for an offender who was 15 years old at the time of the offense?" (Lodgment 8.)
On April 14, 2004, the Supreme Court of the State of California denied the Petition for Review without opinion. (Lodgment 9.)
On February 16, 2005, Petitioner, representing himself, filed a Notice of Motion to Vacate Judgment in the Superior Court of the State of California raising the following claims:
1) that he could not knowingly and intelligently enter into a guilty plea without parental consent; 2) that there was evidence that a plea of not guilty by reason of temporary insanity was appropriate; 3) that he lacked the legal standing to enter into a plea without written parental permission because he was a minor prohibited by California law and federal statutes from entering into a contract; 4) that appointed trial counsel rendered ineffective assistance by allowing the entry of a plea without a full psychiatric evaluation, by failing to move to suppress an interrogation conducted without Petitioner's counsel or parents present, and by failing to obtain parental approval before allowing him to enter a plea of guilty; and 5) that appointed appellate counsel rendered ineffective assistance by failing to consult with him prior to filing direct appeal, filing the appeal brief without his prior approval, and limiting his appellate issues by appealing only those matters occurring after the sentence. (Lodgment 10).
On March 14, 2005, the Superior Court of San Diego denied Petitioner's Motion to Vacate Judgment as untimely. (Lodgment 11.)
On March 22, 2005, Petitioner, representing himself, filed a Petition for Writ of Coram Vobis*fn1 in the California Court of Appeal raising the following claims: 1) that an MRI (Magnetic Resonance Imaging) of his brain taken shortly after the crime could have been analyzed to determine whether his brain development showed a lack of maturity and impulse control; 2) that he could not have knowingly and intelligently entered into a guilty plea because there was evidence which mandated a plea of guilty by reason of insanity and minors are prohibited from entering into contracts; 3) that trial counsel rendered ineffective assistance because by allowing entry of a plea without a full psychiatric evaluation, failing to move to suppress an interrogation conducted without counsel or parents present, and failing to discuss and obtain parental approval before the guilty plea; and 4) that appointed counsel limited his appellate issues by appealing only ...