The opinion of the court was delivered by: Hon. Napoleon A. Jones, Jr. United States District Judge
ORDER: (1) ADOPTING THE MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION; and (2) GRANTING IN PART AND RESPONDENT'S MOTION TO DENYING IN PART DISMISS
Before the Court is Magistrate Judge Cathy Ann Bencivengo's Report and Recommendation ("R&R"), filed on February 5, 2007, recommending that the Court deny in part and grant in part Respondent Jeanne Woodford's ("Respondent") Motion to Dismiss Petitioner Alfred J. Garcia's Petition for Writ of Habeas Corpus. [Doc. No. 24.] On February 26, 2007, Respondent filed timely Objections to the R&R. [Doc. No. 45.] Petitioner filed a Reply to the Objections to the R&R. [Doc. No. 46.] The issues presented are decided without oral argument pursuant to Local Civil Rule 7.1.d.1. See S.D. Cal. Civ. L. R. 7.1.d.1 (2006). For the reasons set forth below, the Court (1) ADOPTS the R&R; and (2) GRANTS IN PART AND DENIES IN PART Respondent's Motion to Dismiss.
Petitioner was convicted of corporal injury to a spouse, assault with a deadly weapon by means of force likely to cause bodily injury, and two counts of attempted carjacking. (Lodgm't No. 6.) On June 25, 2002, Petitioner appealed his conviction to the California Court of Appeal. (Lodgm't No. 3.) The state appellate court affirmed the judgment, with a modification to one of the counts, on April 21, 2003. (Lodgm't No. 6.) On May 23, 2003, Petitioner filed a petition for review in the California Supreme Court. (Lodgm't No. 7.) The petition for review was denied on July 9, 2003. (Lodgm't No. 8.)
Petitioner filed a Petition for Writ of Habeas Corpus with this Court on August 13, 2004, and a First Amended Petition for Writ of Habeas Corpus ("FAP") on September 1, 2004. (Doc. Nos. 1, 5.) The FAP alleges constitutional violations based upon: (1) admission of evidence of Petitioner's past confrontations with a former girlfriend; (2) admission of evidence of a prior rape committed by Petitioner; (3) improper jury instruction; and (4) failure of the state courts to provide Petitioner with an evidentiary hearing. (FAP at 6-9.) On September 10, 2004, Magistrate Judge Porter advised Petitioner that although claims one through three had been exhausted in state court, the Petition was subject to dismissal because claim four remained unexhausted. (Sept. 10, 2004 Order at 2.) Magistrate Judge Porter then issued a series of stays on the action, allowing Petitioner to exhaust claim four in state court. (See id.; Oct. 28, 2004 Order Granting Stay; Feb. 1, 2005 Order Granting Stay; March 24, 2005 Order Granting Stay; June 21, 2005 Order Granting Stay.) On February 6, 2006, Petitioner filed a document titled "Declaration of Denial by Supreme Court of California" informing the Court that his state habeas corpus petition had been denied by the California Supreme Court. [Doc. No. 37.] Magistrate Judge Bencivengo ordered Respondent to file either an answer or a motion to dismiss the FAP.*fn1
[Doc. No. 38.] Respondent filed a Motion to Dismiss on April 27, 2006. [Doc. No. 41.] Petitioner filed an opposition to the motion on May 18, 2006. [Doc. No. 43.] Magistrate Judge Bencivengo subsequently issued a R&R recommending that Respondent's Motion to Dismiss be denied in part and granted in part. [Doc. No. 44.] On February 26, 2007, Respondent timely filed objections to the R&R. [Doc. No. 45.] Petitioner filed a Reply to the Objections. [Doc. No. 46.]
The duty of the district court in connection with a magistrate judge's report and recommendation in habeas cases is set forth in Rule 72(b) of the Federal Rules of Civil Procedure and 28 U.S.C. § 636(b)(1). When an objection is made, the Court must make a de novo determination as to those parts to which a party has objected. Hunt v. Pliler, 384 F.3d 1118, 1123 (9th Cir. 2004).
When no objections are filed, the Court may assume the correctness of the magistrate judge's findings of fact and decide the motion on the applicable law. United States v. Remsing, 874 F.2d 614, 617 (9th Cir. 1989). Under such circumstances, the Ninth Circuit has held that "a failure to file objections only relieves the trial court of its burden to give de novo review to factual findings; conclusions of law must still be reviewed de novo." Barilla v. Ervin, 886 F.2d 1514, 1518 (9th Cir. 1989) overruled on other grounds by Simpson v. Lear Astronics Corp., 77 F.3d 1170, 1174 (9th Cir. 1996). In this case, Respondent filed objections to the R&R. [Doc. No. 45.] Accordingly, this Court will make a de novo determination of those parts to which a specific written objection has been made.
The R&R recommends that Respondent's Motion to Dismiss be granted as to claims two and four because both parties agree that these claims should be dismissed. (R&R at 2.) Claim 2 alleges constitutional violations based on the admission of evidence of a prior rape committed by Petitioner. (FAP at 7.) Petitioner concedes that claim 2 "was never presented to the State Court," states that claim two was "wrongly included" in his Petition, and does not seek to stay his Petition in order to exhaust claim two. (Opp'n to Mot. to Dismiss at 1-2.) Claim 4 alleges constitutional violations based on the failure of the state courts to provide Petitioner with an evidentiary hearing. (FAP at 9.) Petitioner states that "after additional and renewed review by Petitioner's current legal assistant, Petitioner now believes there is no cognizable claim as to Claim 4 as it is presently drafted in the Habeas and further requests that Claim 4 also be disregarded/dismissed." (Opp'n to Mot. to Dismiss at 2.) Because it is undisputed that claims two and four state no cognizable claim, the Court GRANTS Respondent's Motion to Dismiss as to claims two and four.
As to claims one and three of the Petition, Respondent claims that the Petition should be dismissed for failure to prosecute or, in the alternative, for failure to exhaust. The R&R recommends that Respondent's Motion to Dismiss be denied because (1) Respondent has not established a failure to prosecute; and (2) Respondent has not shown that Petitioner failed to fully exhaust these claims. (R&R at 5-6.) In her objections to the R&R, Respondent does not specifically object to the R&R's finding that Respondent did not establish a failure to prosecute. However, Respondent does object to the R&R's conclusion that Petitioner exhausted Claim 1.
I. Respondent's Argument that the Petition Should Be Dismissed for Failure to Prosecute
Respondent alleges that the Petition should be dismissed for failure to prosecute because Petitioner was substantially delayed in filing his initial petition, and Petitioner did not obey the Court's instructions to immediately notify the Court once the California Supreme Court had denied his state habeas petition. (Mot. to Dismiss at 4.) In opposition, Petitioner argues that his petition was filed within the statutory period, and that circumstances beyond his control led to ...