The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge
ORDER DIRECTING PETITIONER TO WITHDRAW HIS UNEXHAUSTED CLAIM WITHIN THIRTY (30) DAYS OF SERVICE OR SUFFER DISMISSAL OF THE ACTION
DEADLINE: THIRTY (30) DAYS
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. Pursuant to 28 U.S.C. § 636(c)(1), Petitioner has consented to the jurisdiction of the United States Magistrate Judge to conduct all further proceedings in the case, including the entry of final judgment, by manifesting consent in a signed writing filed by Petitioner on August 12, 2011 (doc. 13). Pending before the Court is the petition, which was filed on March 16, 2011, and a document filed by Petitioner on September 9, 2011, in response to the Court's order for additional information.
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).
Petitioner alleged that he was 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 expressly 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 (id. at 27-31); and 3) entry of the livingroom 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 (id. at 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.
Although Petitioner listed only three issues as the grounds raised in the body of the petition (pet. 4-5, 7-39), 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 OF THE U S DISTRICT" 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.)
In a previous screening order filed on March 28, 2011, the Court expressed uncertainty about whether or not Petitioner intended to raise a claim concerning the ineffective assistance of trial counsel in his petition. (Doc. 5.) The Court informed Petitioner that the law required exhaustion of state court remedies as to each claim and that it appeared that Petitioner had not exhausted state court remedies as to such a claim. If Petitioner were raising a claim concerning trial counsel's ineffective assistance, he would have to allege exhaustion of such remedies or withdraw the claim if state court remedies had not been exhausted as to the claim. Petitioner was given thirty days to inform the Court if he was raising the ineffective assistance claim, and if he was, to show exhaustion of state remedies as to the claim or why the petition should not be dismissed for failure to exhaust state remedies if the claim was unexhausted. (Id. at 5-9.)
On May 17, 2011, after Petitioner failed to respond to the Court's order, the Court issued an order to Petitioner to show cause why the case should not be dismissed for Petitioner's failure to follow the Court's order. Petitioner sought several extensions of time within which to respond to the Court's order. In a request dated August 12, 2011, Petitioner stated that due to his placement in administrative segregation, he had received some of his legal materials on July 28, 2011. He further stated:
I WILL DO MY BEST TO WORK FROM WHAT I GOT TO RAISE THE CLAIM TO THE SUPREME COURT OF CALIFORNIA. (Doc. 12, 1.) He then asked for more time to do so. (Id.)
In a previous request for an extension, Petitioner had also referred needing more time "TO INFORM THE SUPREME COURT CONCERNING CLAIMS RAISED AND EXHAUSTION OF ...