The opinion of the court was delivered by: Hon. Napoleon A. Jones, Jr. United States District Judge
ORDER: 1) ADOPTING MAGISTRATE JUDGE STORMES'S REPORT AND RECOMMENDATION; 2) DENYING THE PETITIONER'S MOTION TO STAY 3) DISMISSING PETITION FOR WRIT OF HABEAS CORPUS
On May 9, 2007, Petitioner James Franck ("Petitioner"), proceeding pro se, filed a Petition for Writ of Habeas Corpus ("Petitioner's Motion"). Petitioner concedes that one of his four federal claims is unexhausted, and requests that these proceedings be stayed so that he can exhaust the claim in state court. Before the Court is Magistrate Judge Nita L. Stormes's Report and Recommendation ("R&R") recommending that the Court dismiss the Petition [doc. no. 4] but allow the Petitioner an opportunity to file an amended petition which deletes the unexhausted claims and presents only his exhausted claim. For the reasons set forth below, this Court ADOPTS the R&R and DENIES the Petitioner's Motion to Stay, DISMISSES the Petition for Writ of Habeas Corpus, and GRANTS Petitioner the opportunity to file an amended petition which deletes the unexhausted claim and presents only his exhausted claim.
The following statement of facts is taken from the appellate court opinion denying Petitioner's direct appeal.
"At about 3:30 p.m. on June 3, 2004, Franck broke into Todd Bradley's apartment when Bradley was not at home and stole a VCR, DVD player, and VHS cassettes. Bradley's neighbor, Alicia Ramos, heard breaking glass and saw Franck leave the apartment with two plastic trash bags. Ramos summoned the police. Before the police arrived, Franck obtained ice cream from an ice cream vendor on the street, and then went to an alley and showed the stolen items in the bags to a man in a truck. When the police arrived, Franck left the items on the tailgate of the man's vehicle and started walking slowly away. The police called out to him to stop and return for questioning. At first Franck ignored their commands, but eventually he turned and walked back to the police. Franck was detained and then arrested.
Franck had broken through a sliding glass door to gain entry into Bradley's apartment. A brick from Bradley's yard was found on the floor in the apartment. Holes in the sliding screen and glass doors suggested that Franck threw the brick through the screen and the glass door, and then reached this hand in and unlocked the glass door. At the time of this arrest, Franck had no blood, cuts, or scratches on his arms.
Blood tests showed that Franck tested positive for cocaine and methamphetamine use.
Rejecting Franck's voluntary intoxication defense, the jury found him guilty of residential burglary."
Lodgment No. 3, People v. Franck, No. D045831, slip op. at 2-4 (Cal.Ct.App. October 14, 2005.).)
On September 17, 2004, Petitioner was convicted of residential burglary (Cal.Penal Code § 459, 460), being under the influence of cocaine (Cal. Health and Safety Code § 11550(a)), and resisting an officer (Cal. Penal Code § 148(a)(1)). (See Lodgm't. 1 at 109.) During a sentencing hearing on January 13, 2005, the trial judge in the San Diego Superior Court struck one of petitioner's prison priors and sentenced him to a thirteen year term of incarceration. (See Lodgm't. 1 at 109.)
Petitioner filed a direct appeal in the California Court of Appeal, Fourth Appellate District, Division One. (See Lodgm't. 2.) Petitioner alleged that (1) the trial court should have struck his prior strike conviction given the nature of the offense and his condition at the time it was committed, and (2) there was insufficient evidence that he possessed the necessary intent to commit residential burglary due to intoxication. (See id. at 8, 12.) On October 14, 2005, the Court of Appeal affirmed Petitioner's convictions. (See Lodgm't. 3 at 1.) Petitioner did not petition for direct review by the California Supreme Court.
On March 15, 2006, Petitioner filed a Petition For Writ of Habeas Corpus in the San Diego Superior Court. (See Lodgm't. 4.) Petitioner alleged four claims for relief: (1) his trial counsel was ineffective for failing to use a psychiatric defense; (2) his trial counsel was ineffective for advising him not to testify in light of his numerous prior convictions; (3) he was not taking his psychiatric medication because he was cognitively impaired at the time of the offense; and (4) the trial court was prejudiced against Petitioner because of his prior convictions. (See Lodgm't. 4, "Grounds for Relief.") On May 4, 2006, the Superior Court denied the Petition. (See Lodgm't. 5.)
On April 14, 2006, Petitioner filed a similar habeas petition in the California Supreme Court, alleging: (1) his trial counsel was ineffective for failing to use a psychiatric defense; (2) a violation of his First Amendment rights based on his trial counsel's refusal to let him testify at the close of trial in his own defense; (3) diminished capacity because he was not taking his psychiatric medication at the time of the offense; and (4) a violation of the Eighth Amendment's ban on cruel and unusual punishment based on the sentence enhancement he received due to his prior convictions. (See Lodgm't. 6, "Grounds for Relief.") On December 20, 2006, the California Supreme Court denied the Petition without comment. (See Lodgm't. 7.)
On May 9, 2007, Petitioner filed the instant federal petition alleging four grounds for relief: (1) violation of his Sixth Amendment right to counsel of his choice based on the denial of the trial court of his motion requesting a Marsden hearing; (2) a violation of his First Amendment rights based on his trial counsel's refusal to let him testify at the close of trial in his own defense; (3) a violation of his due process rights based on prosecutorial vindictiveness; and (4) the ...