The opinion of the court was delivered by: Marilyn L. Huff, District Judge United States District Court
ORDER DENYING: (1) RESPONDENTS' MOTION TO DISMISS (Doc. 31.) AND (2) PETITIONER'S MOTION (Doc. 35.)
On August 18, 2008, Petitioner Derek Cordeiro ("Petitioner"), a state prisoner proceeding pro se, filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254, challenging his conviction for two counts of lewd and lascivious acts upon a minor, one count of indecent exposure, and one count of child annoyance. (Doc. No. 1 at 36.) On April 20, 2009, Petitioner filed an amended petition. (Doc. No. 28.) On June 17, 2009, Respondents filed a motion to dismiss Petitioner's petition for failure to exhaust state court remedies on six of the seven claims in Petitioner's amended petition. (Doc. No. 31.) On July 24, 2009, Petitioner filed a response in opposition to Respondents' motion to dismiss with an attachment indicating all claims exhausted in state court. (Doc. No. 33., Ex. C) On August 4, 2009,
Petitioner filed a motion concerning his mail. (Doc. No. 35.) On December 4, 2009, the magistrate judge issued a Report and Recommendation that the Court deny Respondents' motion to dismiss and deny Petitioner's motion. (Doc. No. 19.)
The Court, pursuant to its discretion under Local Rule 7.1(d)(1), determines this matter is appropriate for resolution without oral argument and submits the matter on the papers. For the reasons set forth below, the Court adopts the R&R, denying Respondents' motion to dismiss based on failure to exhaust and denying Petitioner's motion without prejudice.
On January 12, 2005, Petitioner was sentenced to a total term of eighty five years to life for two counts of lewd and lascivious acts upon a minor child in violation of California Penal Code 288(a), one count of indecent exposure in violation of California Penal Code 314(1), one count of child annoyance with a previous felony conviction for lewd act upon a child in violation of California Penal Code 647.6(c)(2), and two strikes prior. (Lodg. No. 4.) On May 30, 2006, Petitioner filed a petition for review in the California Supreme Court in which he alleged numerous claims for ineffective assistance of trial counsel. (Lodg. No. 1.) On August 18, 2006, the California Supreme Court summarily denied the petition. (Lodg. No. 2.) On August 1, 2007, Petitioner signed a state habeas petition, which was subsequently filed in San Diego Superior Court on August 30, 2007. (Lodg. No. 3.) The Superior Court denied the petition on October 29, 2007. (Id.) On January 22, 2008, Petitioner constructively filed a state habeas petition in the California Court of Appeal, Fourth Appellate District, Division One. (Lodg. No. 5.) The California Court of Appeal, Fourth Appellate District, Division One denied the petition on May 8, 2008. (Lodg. No. 6.) On July 3, 2008, Petitioner constructively filed a state habeas petition in the California Supreme Court. (Lodg. No. 9; Doc. No. 25, Ex. 2.) On August 18, 2008, Petitioner constructively filed the current federal habeas petition. (Doc. No. 1 at 36.) On January 7, 2009, Petitioner filed a second habeas petition in California Supreme Court as case number S169564. (Doc. No. 29, Attach. 1.) Two weeks later, on January 21, 2009, the California Supreme Court denied Petitioner's first petition, case number S164972. (Doc. No. 25, Ex. 2.) On April 20, 2009, Petitioner filed a First Amended Petition with the Court. (Doc. No. 28.) Petitioner alleged seven grounds for relief in his First Amended Petition: (1) prosecutorial misconduct and ineffective assistance of counsel; (2) the trial court violated his right to a fair trial by instructing the jury that uncharged crimes evidence need only be proved by a preponderance of evidence; (3) there was insufficient evidence to support his convictions for committing lewd act on a child; (4) the trial court should have imposed a sentence akin to the one prescribed or continuous sexual abuse of a child; (5) the trial court erred in imposing excessive consecutive terms; (6) his sentence constitutes cruel and unusual punishment; and (7) the cumulative effect of the trial errors was prejudicial. (Doc. No. 28.) On June 24, 2009, the California Supreme Court denied Petitioner's second petition, case number S169564. (Doc. No. 33, Ex. C.)
I. Scope of Review and Applicable Legal Standard
A district court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1). If a party objects to any portion of a magistrate judge's report, the district court "shall make a de novo determination of those portions of the report . . . to which objection is made." Id. The district court must make a de novo review of all conclusions of law, even if no objection is made. Avratin v. Bermudez, 420 F. Supp.2d 1121, 1122-23 (S.D. Cal. 2006) (citing Barilla v. Irvin, 886 F.2d 1514, 1518 (9th Cir. 1989), overruled on other grounds).
Congress amended the Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA") 28 U.S.C. § 2254(d) to provide the following standard of review applicable to state court decisions:
(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim--
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence ...