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Peavy v. Marshall

July 12, 2010

GARY LEON PEAVY, PETITIONER,
v.
JOHN MARSHALL, WARDEN, RESPONDENT.



The opinion of the court was delivered by: Louisa S Porter United States Magistrate Judge

REPORT AND RECOMMENDATION THAT RESPONDENT'S MOTION TO DISMISS PETITION FOR WRIT OF HABEAS CORPUS BE DENIED [Doc. 7]

On October 19, 2009, Petitioner, a state prisoner proceeding pro se, filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. [Doc. 1.] On December 14, 2009, Respondent filed a Motion to Dismiss the Petition for failure to exhaust certain claims in state court. [Doc. 7.] On February 18, 2010, Petitioner filed an Opposition to the Motion to Dismiss.*fn1 [Doc. 12.] In accordance with Local Rule 72.1(d), this Court RECOMMENDS that Respondent's Motion to Dismiss be DENIED.

I. PROCEDURAL BACKGROUND

On June 2, 2006, a jury in San Diego County Superior Court convicted Petitioner of possession of heroin for sale, possession of heroin, possession of marijuana, possession of cocaine, possession of a firearm by a felon, and possession of cocaine base for sale. [Lodg. 1 at 1-5, 41-46, 245-47.] On February 5, 2007, the Superior Court sentenced Petitioner to state prison for five years and eight months. Id. at 207-08, 258-60.Petitioner appealed, but the California Court of Appeal affirmed his conviction on March 21, 2008. [Lodg. 5.] Petitioner did not file a petition for review with the California Supreme Court.

On January 6, 2009, Petitioner filed a habeas petition in the California Supreme Court ("CSC Pet. #1")[Lodg. 6], which was denied on February 11, 2009 [Lodg. 7]. In this state petition, Petitioner asserted the following grounds for relief:

(1) Insufficient evidence to support conviction for possession of the handgun and narcotics in violation of Fourteenth Amendment right to due process;

(2) The reasonable doubt instruction (to the jury) deprived him of Fourteenth Amendment rights to a fair trial and due process; and

(3) Trial court improperly imposed consecutive sentences without a factual finding by the jury.

Also on January 6, 2009, Petitioner filed a habeas petition in the California Court of Appeal [Lodg. 8], which was denied on February 23, 2009 [Lodg. 9].

On April 29, 2009, Petitioner filed a further habeas petition in the California Supreme Court ("CSC Pet. #2")[Lodg. 10], which was denied on August 19, 2009 [Lodg. 11]. In this state petition, Petitioner asserted the following ground for relief:

(1) Ineffective assistance of trial counsel for failure to win suppression motion, investigate and present alibi witnesses, file motions, attack veracity of warrant, request a continuance, and interview the prosecution's witnesses.

On May 29, 2009, Petitioner filed another habeas petition in the California Supreme Court ("CSC Pet. #3)[Lodg. 12], which was denied on August 19, 2009 [Lodg. 13]. In this state petition, Petitioner asserted the following grounds for relief:

(1) Prosecution failed to disclose material exculpatory evidence, and trial counsel was ineffective for failure to review the file and investigate leads;

(2) Ineffective assistance of appellate counsel for failure to investigate, pursue exculpatory evidence, raise suppression issue, and review "Frank ...


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