The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge
ORDER TO PETITIONER TO INFORM THE COURT NO LATER THAN THIRTY (30) ) DAYS AFTER SERVICE OF THIS ORDER WHETHER HE IS RAISING A CLAIM CONCERNING THE INEFFECTIVE ASSISTANCE OF COUNSEL (Doc. 1)
ORDER TO PETITIONER TO SHOW CAUSE
NO LATER THAN THIRTY (30) DAYS
AFTER SERVICE OF THIS ORDER WHY A
CLAIM OF INEFFECTIVE ASSISTANCE
OF COUNSEL SHOULD NOT BE DISMISSED FOR PETITIONER'S FAILURE TO EXHAUST
STATE COURT REMEDIES AS TO SUCH CLAIM (Doc. 1)
Petitioner is a state prisoner proceeding pro se and in forma pauperis with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. The matter has been referred to the Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1) and Local Rules 302 through 304. Pending before the Court is the petition, which was filed on March 16, 2011.
I. Screening the Petition
Rule 4 of the Rules Governing § 2254 Cases in the United States District Courts (Habeas Rules) requires the Court to make a preliminary review of each petition for writ of habeas corpus. The Court must summarily dismiss a petition "[i]f it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court...." Habeas Rule 4; O'Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 1990); see also Hendricks v. Vasquez, 908 F.2d 490 (9th Cir. 1990). Habeas Rule 2(c) requires that a petition 1) specify all grounds of relief available to the Petitioner; 2) state the facts supporting each ground; and 3) state the relief requested. Notice pleading is not sufficient; rather, the petition must state facts that point to a real possibility of constitutional error. Rule 4, Advisory Committee Notes, 1976 Adoption; O'Bremski v. Maass, 915 F.2d at 420 (quoting Blackledge v. Allison, 431 U.S. 63, 75 n. 7 (1977)). Allegations in a petition that are vague, conclusory, or palpably incredible are subject to summary dismissal. Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Cir. 1990).
Further, the Court may dismiss a petition for writ of habeas corpus either on its own motion under Habeas Rule 4, pursuant to the respondent's motion to dismiss, or after an answer to the petition has been filed. Advisory Committee Notes to Habeas Rule 8, 1976 Adoption; see, Herbst v. Cook, 260 F.3d 1039, 1042-43 (9th Cir. 2001).
A. Three Claims of Trial Court Error Here, Petitioner is an inmate of the California State Prison at Lancaster, California, serving a sentence of seventeen (17) years to life imposed in the Kern County Superior Court upon Petitioner's conviction after jury trial of having violated Cal. Pen. Code §§ 459, 288(A)(c)(2), 273, and 273.6(A). Petitioner raises the following claims concerning the proceedings in the trial court: 1) erroneous or incomplete instructions concerning consideration of prior acts of misconduct violated Petitioner's right to due process of law under the Fourteenth Amendment (pet 9, 18-26); 2) the evidence of Petitioner's intent to commit oral copulation at the time of entry of the structure was insufficient to support a conviction of burglary, and thus Petitioner's right to due process of law under the Fourteenth Amendment was violated (pet. 27-31); and 3) entry of the living room from the bedroom of a single family residence with the intent to commit forcible oral copulation was not sufficient to support a conviction of burglary in violation of Cal. Pen. Code § 459 (pet. 31-38).
The Court notes that all three of these claims appear in the copy of the petition for hearing filed by Petitioner in the California Supreme Court. (Pet. 44-70.) It thus appears that Petitioner has demonstrated that he exhausted his state court remedies as to these claims.
B. Possible Attempt to State a Fourth Claim In listing his grounds on the petition form, Petitioner indicated that he was raising three issues, and he specifically referred to the points and authorities attached to the form. (Pet. 4-5.) In the points and authorities, Petitioner raised only the three claims previously noted. (Pet. 7-39.)
In an abundance of caution, however, the Court notes that following the petition form and an attached copy of Petitioner's petition for review in the California Supreme Court is a letter to the clerk in which Petitioner refers to his trial attorney, Robert Dowd, as having done "A COUPLE OF THINGS HE SHOULD OF (sic) NOT DONE. FALLING SLEEP AT COURT AND A FEW OTHER THINGS." (Pet. 74-75.) Further, Petitioner attaches unauthenticated pages of what appear to be transcripts of trial court proceedings concerning Mr. Dowd's having fallen asleep for ten or fifteen minutes during instruction of the jury. (Pet. 82-87.) The pages are not consecutive, so it is impossible to have a complete picture of the entirety of the proceedings. However, it appears that there was a colloquy between Petitioner and the trial court concerning counsel's sleeping in which Petitioner was offered a new trial, and there was discussion of a motion for a new trial relating to counsel's sleeping. Petitioner also attached a letter from appellate counsel, who advised Petitioner that Petitioner himself would have to raise the issues not raised by appellate counsel, such as ineffective assistance of counsel. (Pet. 80-81.)
It is unclear whether Petitioner's statement that trial counsel slept in court and did things he should not have done is an attempt to state a claim concerning ineffective assistance of trial counsel. This is because it appears from the petition form that Petitioner intended to raise three claims as delineated in the attached points and authorities, which did not contain any reference to the ineffective assistance of counsel. Further, the brief, conclusory reference in Petitioner's note to the clerk does not state specific facts or refer to any federal constitutional violations.
However, it is possible that Petitioner is attempting to raise a claim concerning the ineffective assistance of counsel in the petition filed in this Court.
C. Lack of Exhaustion of State Remedies as to a Claim of Ineffective Assistance of Counsel
If Petitioner is indeed attempting to raise such a claim, the Court notes that Petitioner has not shown that he ...