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Mario Alexander Nungaray v. Hedgepeth A.


June 13, 2012


The opinion of the court was delivered by: Charles F. Eick United States Magistrate Judge


This Report and Recommendation is submitted to the Honorable Josephine Staton Tucker, United States District Judge, pursuant to 28 U.S.C. section 636 and General Order 05-07 of the United States District Court for the Central District of California.


Petitioner filed a "Petition for Writ of Habeas Corpus By a Person in State Custody" on January 27, 2012. This petition did not specify any particular ground for relief or state any supporting facts. Therefore, on February 17, 2012, the Court issued an "Order Dismissing Petition with Leave to Amend."

On March 19, 2012, Petitioner filed a First Amended Petition ("the First Amended Petition" or "the Petition"). On May 2, 2012, Respondent filed an Answer, contending that Petitioner's claims are unexhausted and untimely. On May 21, 2012, Petitioner filed a reply.


In 1996, a jury found Petitioner guilty of first degree murder with personal use of a firearm (First Amended Petition, p. 2; see People v. Nungaray, 2011 WL 300214, at *1 (Cal. App. Feb. 1, 2011)). Petitioner received a sentence of twenty-nine years to life (First Amended Petition, p. 2; Clerk's Transcript ("C.T.") 4, 31; see People v. Nungaray, 2011 WL 300214, at *1).

The California Court of Appeal affirmed the judgment on January 7, 1998 (Respondent's Lodgment 6, pp. 1-2; see People v. Nungaray, 2011 WL 300214, at *1). On March 25, 1998, the California Supreme Court denied Petitioner's petition for review, in case number S068025 (Respondent's' Lodgment 2).

On August 2, 2007, Petitioner filed in the Los Angeles County Superior Court a "Motion for Request of All Trial Transcripts, etc." (see C.T. 5). On August 15, 2007, the Superior Court denied this motion (C.T. 5). On November 8, 2008, Petitioner filed a request in the Superior Court for a transcript of a "'Marsden*fn1 hearing' conducted on February 22, 1996" (see C.T. 7). On January 2, 2009, the Superior Court denied this request (C.T. 7).

In or about March of 2010, Petitioner submitted to the Superior Court an "Open Letter to the Court," requesting certain relief in regard to his conviction and sentence (C.T. 12- 28). On March 23, 2010, the Superior Court denied Petitioner's requests (C.T. 9-10).

On May 3, 2010, Petitioner filed a notice of appeal from the Superior Court's denial of his March, 2010 requests (C.T. 78). On October 4, 2010, Petitioner's appellate counsel filed an opening brief in this appeal pursuant to People v. Wende, 25 Cal. 3d 436, 158 Cal. Rptr. 839, 600 P.2d 1071 (1979), and Anders v. California, 386 U.S. 738 (1967) (Respondent's Lodgment 4). On October 20, 2010, Petitioner filed a pro se supplemental brief (Respondent's Lodgment 5). On February 1, 2011, the Court of Appeal affirmed the Superior Court's denial of Petitioner's requests (Respondent's Lodgment 6; see People v. Nungaray, 2011 WL 300214 (Cal. App. Feb. 1, 2011)). On April 13, 2011, the California Supreme Court denied Petitioner's petition for review, in case number S191032 (First Amended Petition, p. 8; see Respondent's Lodgment 7).


Petitioner contends:

1. Petitioner's "juvenile counsel" allegedly rendered ineffective assistance, by assertedly failing to subpoena an expert psychologist to testify concerning Petitioner's purported inability to understand the adult legal system and Petitioner's alleged learning disabilities (Ground One);

2. The trial court allegedly erred in responding to a jury question in Petitioner's absence; Petitioner's trial counsel allegedly rendered ineffective assistance by assertedly failing to advise Petitioner of the jury question and allegedly failing to object to proceeding in Petitioner's absence (Ground Two); and

3. Petitioner's appellate counsel allegedly rendered ineffective assistance, by assertedly failing to raise the following issues on appeal: (a) alleged ineffective assistance of "juvenile counsel";

(b) alleged ineffective assistance of trial counsel; (c) the trial court's alleged denial of a Marsden hearing; (d) an alleged Miranda violation; (e) an allegedly illegal interrogation practice;

(f) alleged juror misconduct; (g) a challenge to a juvenile fitness hearing; and (h) an alleged due process violation (Ground Three).


A federal court will not grant a state petitioner's petition for writ of habeas corpus unless it appears that the petitioner has exhausted available state remedies. 28 U.S.C. § 2254(b) - (c); Baldwin v. Reese, 541 U.S. 27, 29 (2004); O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999). "Comity thus dictates that when a prisoner alleges that his continued confinement for a state court conviction violates federal law, the state courts should have the first opportunity to review this claim and provide any necessary relief." O'Sullivan v. Boerckel, 526 U.S. at 844. The exhaustion requirement seeks to avoid "the unseemliness of a federal district court's overturning a state court conviction without the state courts having had an opportunity to correct the constitutional violation in the first instance." Id. at 844-45 (citations, internal brackets and quotations omitted). Exhaustion is considered on a "claim-by-claim" basis. Insyxiengmay v. Morgan, 403 F.3d 657, 667 (9th Cir. 2005).

State remedies have not been exhausted unless and until the petitioner's federal claims have been fairly presented to the state's highest court. See Castille v. Peoples, 489 U.S. 346, 350-51 (1989); James v. Borg, 24 F.3d 20, 24 (9th Cir.), cert. denied, 513 U.S. 935 (1994).

Petitioner's first petition for review to the California Supreme Court, in case number S068025, raised only a claim of alleged instructional error, a claim which Petitioner does not assert in the First Amended Petition (see Respondent's Lodgment 1). Petitioner's second petition for review, in case number S191032, consisted of:

(1) a copy of appellate counsel's Wende/Anders brief; (2) form and handwritten requests for accommodation based on Petitioner's alleged learning disability; (3) an "open letter of concern" in which Petitioner sought excuse from alleged noncompliance with court rules, including rules regarding the number of copies of the petition, based on asserted prison law library restrictions; (4) a request for judicial notice of the records in Petitioner's direct appeal; and

(5) a copy of the Court of Appeal's February 1, 2011 decision (see Respondent's Lodgment 7). In this second petition for review, Petitioner did not raise any of the claims raised in the First Amended Petition.*fn2 Therefore, the First Amended Petition is completely unexhausted.

Petitioner still may be able to present his unexhausted claims to the California Supreme Court. See, e.g., In re Harris, 5 Cal. 4th 813, 825, 21 Cal. Rptr. 2d 373, 855 P.2d 391 (1993) ("[H]abeas Corpus has become a proper remedy in this state to collaterally attack a judgment of conviction which has been obtained in violation of fundamental constitutional rights.") (citations and quotations omitted); Mendez v. Superior Court, 87 Cal. App. 4th 791, 799, 104 Cal. Rptr. 2d 839 (2001) (claim that conviction was obtained in violation of fundamental constitutional rights may be raised by state habeas petition; citation and internal quotations omitted).*fn3

In certain circumstances, the Court has authority to stay a "mixed" petition containing both exhausted and unexhausted claims.

See Rhines v. Weber, 544 U.S. 269 (2005); King v. Ryan, 564 F.3d 1133, 1143 (9th Cir.), cert. denied, 130 S. Ct. 214 (2009) (stay procedure authorized by Kelly v. Small, 315 F.3d 1063 (9th Cir.), cert. denied, 548 U.S. 1042 (2003), overruled on other grounds, Robbins v. Carey, 481 F.3d 1143 (9th Cir. 2007), remains available after Rhines v. Weber). However, the present Petition is not mixed; it is completely unexhausted. The Court cannot stay a completely unexhausted petition. See Raspberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir. 2006) (Rhines stay inappropriate); Jarrar v. Barnes, 2009 WL 2394361, at *1 n.1 (E.D. Cal. Aug. 4, 2009) (Kelly stay inappropriate); Tappin v. United States District Court, 2008 WL 686555, at *8 (E.D. Cal. Mar. 11, 2008) (same). Therefore, the Petition must be dismissed without prejudice as unexhausted. See Guillory v. Roe, 329 F.3d 1015, 1017 (9th Cir.), cert. denied, 540 U.S. 974 (2003).*fn4


For the foregoing reasons, IT IS RECOMMENDED that the Court issue an Order: (1) accepting and adopting this Report and Recommendation; and (2) denying and dismissing the Petition without prejudice.


Reports and Recommendations are not appealable to the Court of Appeals, but may be subject to the right of any party to file objections as provided in the Local Rules Governing the Duties of Magistrate Judges and review by the District Judge whose initials appear in the docket number. No notice of appeal pursuant to the Federal Rules of Appellate Procedure should be filed until entry of the judgment of the District Court.

If the District Judge enters judgment adverse to Petitioner, the District Judge will, at the same time, issue or deny a certificate of appealability. Within twenty (20) days of the filing of this Report and Recommendation, the parties may file written arguments regarding whether a certificate of appealability should issue.

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