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Blair v. Small

February 11, 2010

JERMAINE ROBERT BLAIR, PETITIONER,
v.
LARRY SMALL, RESPONDENT.



The opinion of the court was delivered by: Craig M. Kellison United States Magistrate Judge

FINDINGS AND RECOMMENDATIONS

Petitioner, a state prisoner proceeding pro se, brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Pending before the court is respondent's motion to dismiss (Doc. 17).

I. BACKGROUND

Petitioner is serving a term of 87 years in prison following convictions on ten counts of second degree armed robbery, one count of assault with a firearm, two counts of unlawful driving and taking of a motor vehicle, and two counts of assault with a semi-automatic firearm. Petitioner admitted three prior convictions. Petitioner's convictions and sentence were affirmed on direct appeal and the California Supreme Court denied direct review. Petitioner raises three claims in his federal petition as follows:

Claim 1 "Violation of Due Process (Fair Trial and Equal Protection)"

Petitioner claims that, because he was denied the right to be present at every critical stage in the proceedings, he was unable to exercise a peremptory challenge to the judge assigned to his case.

Claim 2 "Ineffective Assistance of Counsel"

Petitioner asserts that trial counsel let him languish in jail for over three years, failed to file any motion to suppress, failed to obtain DNA testing data, and failed to seek a bifurcated trial.

Claim 3 "Improper Conduct by Trial Judge (Further Showing his Prejudice and Illustrating he was not Impartial)"

Petitioner argues that the trial judge erred in allowing a juror to ask him questions and them himself asking "9 pages worth of questions."

Petitioner admits in his petition that he did not raise Claims 2 or 3 in the state court. Specifically, he states:

Ineffective assistance of [appellate] counsel. I requested -- via mail -- this issue be brought up by my appellant [sic] attorney but it was not addressed in my opening brief for whatever reason; Improper conduct by judge "Ditto."

II. DISCUSSION

Respondent argues that petitioner fails to state a federal claim in Claim 1 and that Claims ...


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