The opinion of the court was delivered by: Irma E. Gonzalez, Chief Judge United States District Court
Order Adopting Report and Recommendation; Dismissing Petitioner's Claim for Relief based upon Cunningham; Requiring Response to Petition
Petitioner Douglas Lucky, a state prisoner proceeding pro se, has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his November 18, 2004 conviction and sentence in San Diego County Superior Court Case No. SCD18336. Respondent moves to dismiss the petition as containing an unexhausted claim. Petitioner has filed a response. On November 13, 2007, Magistrate Judge Nita L. Stormes filed a Report & Recommendation recommending that the motion to dismiss be denied as moot. No party has filed any objection.
The Petition formally designates only two claims for relief: (1) the trial court erred in failing to instruct the jury according to CALJIC 2.02, and (2) appellate counsel was constitutionally ineffective because he failed to argue on direct appeal that trial counsel coerced Petitioner to admit certain prison priors considered in sentencing. At the end of his argument regarding his claim of ineffective assistance of appellate counsel, Petitioner states as follows:
Further the United States Supreme Court's recent decision in Cunningham v. California*fn1 , . . . is intervening and is controlling in regard to the trial court's finding upon the sentence without a jury making those findings in this case. Id. This case deserves reversal. [Petition, p. 5 of 10 "D", lines 20-25.] Respondent argues this "Third Claim for Relief" is unexhausted because Petitioner has never raised such claim before the California Supreme Court.
In his August 30, 2007 opposition to the motion to dismiss, Petitioner asks the court "to grant him the right to 'Forfeit' the unexhausted Cunningham claim and proceed with the exhausted habeas claim[s] now before the court." The Court hereby ADOPTS Magistrate Judge Stormes' Report and Recommendation, and DISMISSES Petitioner's claim based upon Cunningham.*fn2
Based thereon, the Court hereby orders Respondent to file and serve an answer to the Petition, and a memorandum of points and authorities in support of such answer, pursuant to Rule 5 of the Rules Governing § 2254 Cases, no later than February 18, 2008. At the time the answer is filed, Respondent shall lodge with the Court all records bearing on the merits of Petitioner's claims. Petitioner may file a traverse to matters raised in the answer no later than March 17, 2008. Unless otherwise ordered by the Court, this case shall be deemed submitted on the day following the date Petitioner's traverse is due.