IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
April 22, 2011
LEON WILSON CROCKETT, PETITIONER,
R. BARNES, RESPONDENT.
The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
FINDINGS & RECOMMENDATIONS
Petitioner, a state prisoner proceeding pro se, has filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. On January 14, 2011, respondent filed a motion to dismiss on the grounds that the petition contains unexhausted claims and other claims contain only conclusory allegations. Petitioner filed an opposition, but respondent did not file a reply.
The instant federal petition (Doc. 1) contains six claims and a copy of the petition for review to the California Supreme Court, which also contains six claims. While some of the claims in the instant petition correspond to the claims in the petition to the California Supreme Court, respondent is correct to point out that other of the claims in the instant petition are quite vague and may or may not correspond to the claims in the California Supreme Court petition. If petitioner is bringing claims that do not correspond to the claims in the state petition, then they would appear not to be properly exhausted and vague.
However, in his opposition to the motion to dismiss (Doc. 25), petitioner clarified that all claims brought in the federal petition are the exact claims that were presented to the California Supreme Court. Opposition to Motion to Dismiss at 2-3. Therefore, the substance of all claims being brought in the instant petition is now clear and the claims have been properly exhausted.*fn1 The motion to dismiss should be denied, and respondent should file an answer to the claims as set forth in the petition to the California Supreme Court annexed to the instant petition.
Accordingly, IT IS HEREBY RECOMMENDED that respondent's January 14, 2011, motion to dismiss (Doc. 21) be denied and respondent shall file an answer to the petition within sixty days, if these findings and recommendations are adopted.
These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty-one days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Any reply to the objections shall be served and filed within fourteen days after service of the objections. The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
Gregory G. Hollows
GGH: AB croc2296.mtd