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Carney v. Harrington

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA


February 4, 2010

FREDERICK RYDELL CARNEY, PETITIONER,
v.
KELLY HARRINGTON, WARDEN, RESPONDENT.

The opinion of the court was delivered by: A. Howard Matz United States District Judge

ORDER ACCEPTING MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION ON PETITION FOR WRIT OF HABEAS CORPUS BY A PERSON IN STATE CUSTODY

Pursuant to 28 U.S.C. § 636, the Court has reviewed the entire file de novo, including the magistrate judge's report and recommendation and petitioner's objections to the report and recommendation. The magistrate judge recommends dismissal of the petition on the basis that two of its five grounds are unexhausted; she afforded petitioner an opportunity to either return to the state courts to exhaust these grounds or to proceed on this matter by deleting them from his petition. See Rose v. Lundy, 455 U.S. 509, 510, 522 (1982) (noting that "mixed" habeas petitions generally should be dismissed or the unexhausted grounds deleted).

In his objections to the report and recommendation, petitioner appears to seek to delete the two unexhausted grounds, but also appears to seek to insert two new grounds relating to the effectiveness of his appellate counsel. He concedes that these grounds are not exhausted.

He seeks leave to proceed, nonetheless, on the basis that these grounds are related to his current ground one, which claims abandonment by appellate counsel. He urges, furthermore, that he would now be precluded from raising these two grounds in the state's highest court.

No facts appear on the face of the petition or its attached exhibit that would justify such extraordinary relief. See O'Sullivan v. Boerckel, 526 U.S. 838, 119 S.Ct. 1728, 1731 (1999) (if a petitioner has not given the state court the opportunity to review his claims, and the time to do so has passed, a state prisoner's claims are normally procedurally defaulted, unless the prisoner has a valid excuse for the default).

According to the petition and its attached exhibits, petitioner raised a claim challenging the effectiveness of his appellate counsel in a state habeas petition filed in 2007, and petitioner has not established that extraordinary circumstances precluded him from either raising these grounds at that time or from returning to the California courts at any time since then to exhaust these grounds.*fn1 Moreover, petitioner has been advised previously by this court that he may proceed here only on a fully exhausted habeas petition.*fn2 He nonetheless elected to proceed on an unexhausted petition.

Accordingly, IT IS ORDERED:

1. The report and recommendation is accepted.

2. Judgment shall be entered consistent with this order.

3. The clerk shall serve this order and the judgment on all counsel or parties of record.


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