The opinion of the court was delivered by: Robert N. Block United States Magistrate Judge
On January 19, 2010 (proof of service date), petitioner constructively filed a Petition for Writ of Habeas Corpus Under 28 U.S.C. § 2254 by a Person in State Custody herein. The Petition purports to be directed to a Los Angeles Superior Court conviction for attempted second degree murder sustained on March 6, 2007 pursuant to petitioner's nolo contendere plea. Concurrently with the filing of the Petition, petitioner filed a document captioned "Request for Stay and Abeyance to Exhaust All State Grounds-Remedies." Petitioner is requesting that the Court hold the Petition in abeyance until the California Supreme Court rules on two pending habeas petitions.
As discussed hereafter, petitioner has failed to make the requisite showings for holding a federal habeas petition in abeyance pending the exhaustion of state remedies. Moreover, it appears to the Court that the Petition does not even state a claim upon which federal habeas relief may be granted. Finally, it appears to the Court that the Petition likely is time barred in any event.
Accordingly, on or before March 22, 2010, petitioner is ordered to show cause, in writing, why the Court should not issue a Report and Recommendation recommending (a) the denial of his stay-and-abeyance request, and (b) the summary dismissal of the Petition under Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts.
I. Petitioner has Failed to Make the Requisite Showings for Stay-and-Abeyance
Based on its review of the Petition, it is unclear to the Court which of the eight grounds for relief being alleged by petitioner remain unexhausted. The Court notes in this regard that, with respect to Grounds One, Two, Three, and Four, petitioner responded in the affirmative to the question asking whether he raised that ground in the California Supreme Court. (See Petition at 6, 7, 8, and 9.) Further, in ¶ 24(c), petitioner indicated that the grounds raised in his pending California Supreme Court habeas petitions are the same as those listed in ¶ 15(c) above, which petitioner indicated in ¶ 19(c) he already had raised in a previous California Supreme Court habeas petition that was denied on March 21, 2009.
However, assuming that petitioner already has exhausted his state remedies with respect to some of his claims, but not others, the Court's determination of petitioner's stay-and-abeyance request is governed by Rhines v. Weber, 544 U.S. 269, 125 S.Ct. 1528, 161 L.Ed. 2d 440 (2005). There, the Supreme Court held that the prerequisites for obtaining a stay of a "mixed petition" while the petitioner exhausts his state remedies are: (a) that the petitioner show good cause for his failure to exhaust his claims first in state court; (b) that the unexhausted claims not be "plainly meritless"; and (c) that petitioner not have engaged in "abusive litigation tactics or intentional delay." See id. at 277-78.
Here, in his stay-and-abeyance request, petitioner has not even purported to make a showing of "good cause" for his failure to exhaust his claims first in state court. Moreover, the Court fails to see how petitioner could show good cause for not exhausting all of his claims in his previous California Supreme Court habeas petition that was denied on March 21, 2009.
Nor has petitioner purported to make the requisite showing that his unexhausted claims are not "plainly meritless." Moreover, for the reasons discussed in the next section, it does not appear to the Court that petitioner could make this showing.
II. The Petition Does Not State A Claim Upon Which Federal Habeas Relief May Be Granted
Grounds One, Four, Five, and Six of the Petition are not even framed as federal constitutional claims and on their face appear merely to be challenging the trial court's application of California sentencing law. As such, these claims are not even cognizable on federal habeas review. See 28 U.S.C. § 2254(a); Watts v. Bonneville, 879 F.2d 685, 687 (9th Cir. 1989); see also, e.g., Christian v. Rhode, 41 F.3d 461, 469 (9th Cir. 1994); Cacoperdo v. Demosthenes, 37 F.3d 504, 507 (9th Cir.), cert. denied, 514 U.S. 1026 (1995); Hendricks v. Zenon, 993 F.2d 664, 674 (9th Cir. 1993); Miller v. Vasquez, 868 F.2d 1116, 1118-19 (9th Cir. 1989).
The first part of Ground Two, all of Ground Three, and all of Ground Seven appear to be foreclosed by Tollett v. Henderson, 411 U.S. 258, 93 S.Ct. 1602, 36 L.Ed. 2d 235 (1973). There, the Supreme Court held that, "[w]hen a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea." See id. at 266-67; see also Menna v. New York, 423 U.S. 61, 62 n.2, 96 S.Ct. 241, 46 L.Ed. 2d 195 (1975); United States v. Foreman, 329 F.3d 1037, 1038-39 (9th Cir. 2003) (precluding pre-plea motion for substitute counsel claim); Moran v. Godinez, 57 F.3d 690, 700 (9th Cir. 1994) (as amended) (foreclosing pre-plea ineffective assistance of counsel claim), cert. denied, 516 U.S. 976 (1995); United States v. Bohn, 956 F.2d 208, 209 (9th Cir. 1992) (per curiam) (precluding denial of counsel at critical stage and violation of Speedy Trial Act claims).
The Court further notes that, under 28 U.S.C. § 2254(d), federal habeas relief may not be granted on a claim unless the State courts' rejection of the claim either was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States. Moreover, the "clearly established Federal law" that controls federal habeas review of state court decisions consists of holdings (as opposed to dicta) of Supreme Court decisions "as of the time of the relevant state-court decision." See Williams v. Taylor, 529 U.S. 362, 412, 120 S.Ct. 1495, 146 L.Ed. 2d 389 (2000); see also Carey v. Musladin, 549 U.S. 70, 74, 127 S.Ct. 649, 166 L.Ed. 2d 482 (2006); Smith v. Patrick, 508 F.3d 1256, 1260 (9th Cir. 2007). The United States Supreme Court has left open the question whether the Constitution requires that a defendant be permitted to speak at sentencing and the Circuits are split on this issue. Accordingly, it does not appear to the Court that the right to allocution claim being alleged in the second part of Ground Two of the Petition states a claim upon which federal habeas relief may be granted.
Finally, based on the Supreme Court's reasoning and conclusion in Lockyer v. Andrade, 538 U.S. 63, 123 S.Ct. 1166, 155 L.Ed. 2d 144 (2003), it does not appear to the Court that the Eighth Amendment claim alleged in Ground Eight of the Petition states a claim upon which federal habeas relief may be granted. In Andrade, the Supreme Court held that, in the context of an Eighth Amendment challenge to a prison sentence, the "only relevant clearly established law amenable to the 'contrary to' or 'unreasonable application of' framework [was] the gross disproportionality principle, the precise contours of which [were] unclear, applicable only in the 'exceedingly rare' and 'extreme' case." Andrade, 538 U.S. at 73 (citing Harmelin v. Michigan, 501 U.S. 957, 1001, 111 S.Ct. 2680, 115 L.Ed. 2d 836 (1991); Solem v. Helm, 463 U.S. 277, 290, 103 S.Ct. 3001, 77 L.Ed. 2d 637 (1983); and Rummel v. Estelle, 445 U.S. 263, 272, 100 S.Ct. 1133, 63 L.Ed. 2d 382 (1980)). In Andrade, the Supreme Court concluded that two consecutive 25 years to life sentences with the possibility of parole, imposed under California's Three Strikes Law following two petty theft convictions with priors, did not amount to cruel and unusual punishment. See Andrade, 538 U.S. at 77; see also Ewing v. California, 538 U.S. 11, 30-31, 123 S.Ct. 1179, 155 L.Ed. 2d 108 (2003) (holding that a sentence of 25 years to life imposed for felony grand theft under California's Three Strikes Law did not violate the Eighth Amendment). "Generally, so long as the sentence imposed does not exceed the statutory maximum, it will not be overturned on eighth amendment grounds." United States v. McDougherty, 920 F.2d 569, 576 (9th Cir. 1990); see also Belgarde v. State of Mont., 123 F.3d 1210, 1215 (9th Cir. 1997). The Ninth Circuit also has held that "a sentence within the limits set by a valid statute may not be overturned on appeal as cruel and unusual punishment unless the sentence is so 'grossly out of proportion to the severity of the crime' as to shock our sense of justice." United States v. Cupa-Guillen, 34 F.3d 860, 864 (9th Cir. 1994), cert. denied, 513 U.S. 1120 (1995); see also United States v. Vega-Mejia, 611 F.2d 751, 753 (9th Cir. 1979); United States v. Washington, 578 F.2d 256, 258-59 (9th Cir. 1978). Petitioner's 20-year sentence (which was comprised of five years for the attempted second degree murder to which petitioner pleaded no ...