The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge
ORDER DISCHARGING ORDER TO SHOW CAUSE (Doc. 7) ORDER DENYING PETITIONER'S MOTION FOR STAY AND ABEYANCE OF THE PETITION (Doc. 13) FINDINGS AND RECOMMENDATION TO DISMISS THE PETITION WITHOUT PREJUDICE FOR FAILURE TO EXHAUST STATE COURT REMEDIES (Doc. 1), DECLINE TO ISSUE A CERTIFICATE OF APPEALABILITY, AND DIRECT THE CLERK TO CLOSE THE ACTION OBJECTIONS DEADLINE: THIRTY (30) DAYS
Petitioner is a state prisoner proceeding pro se and in forma pauperis with a petition 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 and 303. Pending before the Court is Petitioner's response to an order to show cause and Petitioner's motion for a stay and abeyance of the proceedings to permit Petitioner to complete exhaustion of state court remedies with respect to the claims raised in the petition.
I. Discharge of the Order to Show Cause Because Petitioner has filed a timely response to the order to show cause, the order to show cause that issued on May 4, 2011, is DISCHARGED.
II. 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 petition for habeas corpus should not be dismissed without leave to amend unless it appears that no tenable claim for relief can be pleaded were such leave granted. Jarvis v. Nelson, 440 F.2d 13, 14 (9th Cir. 1971).
Here, after review of the petition, the Court on May 4, 2011, issued an order to Petitioner to show cause why the petition should not be dismissed for Petitioner's failure to exhaust state court remedies. After multiple extensions of time, Petitioner filed a motion to stay the proceedings to permit Petitioner to exhaust state court remedies, along with an explanation of the status of the proceedings supported by copies of documents submitted to the state courts.
In the petition, Petitioner alleged that he was an inmate of the Centinela State Prison *fn1 serving a sentence of fifty-seven (57) years to life imposed on January 29, 2007, by the Stanislaus County Superior Court for convictions of attempted murder, brandishing a firearm at a peace officer, assault with a deadly weapon, and being a felon in possession of a firearm with gang enhancements. (Pet. 1.) Petitioner challenges his conviction and alleges the following claims: 1) his trial counsel rendered ineffective assistance in violation of the Sixth and Fourteenth Amendments by failing to require the prosecution to prove predicate acts under Cal. Pen. Code § 186.22(f), a gang enhancement statute, and by failing to object to the application of the statute where there was an absence of evidence of ongoing association (pet. 26-31); 2) Petitioner's rights under the Fifth Amendment and the Miranda decision were violated by the use of his alleged admission to a California corrections counselor during a classification intake procedure that he was a "Blood gang member" (id. at 32-33); 3) Petitioner's right to due process of law guaranteed by the Sixth and Fourteenth Amendments as well as by the California Constitution was violated by the use of an unduly suggestive pretrial identification procedure (id. at 35-37); and 4) Petitioner's right under the Sixth and Fourteenth Amendments to the effective assistance of counsel was violated by appellate counsel's failure to raise the previous three grounds on direct appeal (id. at 38-39).
However, absent from the petition were any allegations that as to these claims, state judicial remedies were exhausted; instead, Petitioner alleged that other issues had been presented on appeal and in a petition for review.
Review of the motion for stay and the response to the order to show cause reveals that in October 2010, after Petitioner's petition for review by the California Supreme Court was denied, Petitioner filed a habeas petition in the Stanislaus County Superior Court in which he raised the following claims: 1) ineffective assistance of trial counsel based on counsel's failure to force the prosecution to prove the requisite "predicate acts" to substantiate gang enhancements under Cal. Pen. Code § 186.22; 2) ineffective assistance of trial counsel based on counsel's failure to object to admission of Petitioner's statement of gang membership made to correctional officers during a classification proceeding; 3) ineffective assistance of trial counsel based on counsel's failure to object to an unduly suggestive pretrial identification; 4) and ineffective assistance of appellate counsel in failing to raise the foregoing substantive issues at trial or on appeal. *fn2 (Doc. 13, 9-10.) Petitioner is proceeding to exhaust remaining state court remedies as to these claims.
Petitioner has thus admitted that both presently and at the time he filed the petition, Petitioner's state court remedies as to all the claims raised in the petition remained unexhausted.
IV. Exhaustion of State Court Remedies and ...