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Cesar Melgoza Perez v. M. D. Bitter

January 3, 2012

CESAR MELGOZA PEREZ,
PETITIONER,
v.
M. D. BITTER, WARDEN,
RESPONDENT.



The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge

ORDER DENYING PETITIONER'S MOTION TO STAY THE PETITION PURSUANT TO RHINES WEBER (DOC. 2)

ORDER GRANTING PETITIONER THIRTY (30) DAYS FROM THE DATE OF SERVICE OF THIS ORDER TO WITHDRAW PETITIONER'S UNEXHAUSTED CLAIMS ND SEEK A KELLY STAY INFORMATIONAL ORDER TO PETITIONER CONCERNING DISMISSAL IF UNEXHAUSTED CLAIMS ARE NOT WITHDRAWN

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 through 304. Pending before the Court is the petition and Petitioner's ex parte motion for a stay and abeyance of the petition, which were filed on October 24, 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 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).

Petitioner alleges he is an inmate of the Kern Valley State Prison (KVSP) located in Delano, California, serving a sentence imposed in the Superior Court of the State of California for the County of Stanislaus pursuant to Petitioner's convictions on March 11, 2009, of murder and assault by means of force likely to produce great bodily injury with gang enhancements. Petitioner challenges his convictions. (Pet. 1-4.)

The Court has previously dismissed without leave to amend some claims to the extent that they rested on state law, including the state law components of the following claims: his fifth claim concerning cruel and unusual punishment; his sixth, seventh, and eighth claims concerning the allegedly ineffective assistance of counsel; and his ninth claim concerning the alleged insufficiency of the evidence to support two enhancements. (Docs. 10, 13.)

Petitioner raises the following claims as to which he alleges that state court remedies have been exhausted: 1) denial of Petitioner's right to a fair trial in violation of the due process protections of the Fifth and Fourteenth Amendments by admission of the testimony of four witnesses who testified pursuant to a plea agreement that coerced them to testify for the prosecution; 2) denial of Petitioner's Sixth and Fourteenth Amendment right to a fair trial resulting from prejudicial error in providing an incorrect instruction concerning corroboration of accomplice testimony, and denial of Petitioner's Sixth and Fourteenth Amendment right to the effective assistance of counsel if counsel failed to preserve the issue for appeal; 3) violation of Petitioner's Sixth and Fourteenth Amendment right to confrontation by admission of an autopsy report; 4) denial of Petitioner's Fourteenth Amendment right to due process of law resulting from the trial court's compound errors of giving an incomplete instruction concerning flight after being accused of a crime in the absence of evidence to support the giving of the instruction in the first instance; and 5) violation of Petitioner's Eighth Amendment protection against cruel and unusual punishment under the Constitution by the trial court's sentencing Petitioner to fifty years to life. (Pet. 4-6, 21-22, 24, 53-55, 63.)

Petitioner raises the following additional claims which he describes as newly discovered, unexhausted grounds: 6) denial of Petitioner's right to the effective assistance of counsel guaranteed by the Sixth Amendment resulting from trial counsel's failure to request that a detective and a prosecutorial investigator who were also principal witnesses against Petitioner be excluded from sitting at the counsel table throughout the trial; 7) denial of Petitioner's right to the effective assistance of counsel guaranteed by the Sixth Amendment by trial counsel's failure to object to and exclude photographs of the deceased; 8) denial of Petitioner's right under the Sixth Amendment to the effective assistance of counsel by trial counsel's failure to object to the prosecutor's a) vouching for the credibility of witnesses and b) improper remarks concerning Petitioner's guilt before and during argument; and 9) denial of Petitioner's right under the Fourteenth Amendment resulting from the insufficiency of the evidence to support convictions of the enhancements of discharging, and being armed with, a firearm. (Pet. 6-7.)

II. Motion for Stay and Abeyance

On October 24, 2011, Petitioner filed notice of an ex parte motion to hold the petition for writ of habeas corpus in abeyance along with a supporting declaration. (Doc. 2.) Petitioner seeks a stay of the action, including but not limited to a stay pursuant to Rhines v. Weber, 544 U.S. 269, 276 (2005). The Court interprets Petitioner's motion as including a request for not only a ...


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