The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge
ORDER DISMISSING THE PETITION FOR WRIT OF HABEAS CORPUS WITHOUT PREJUDICE (DOC. 1)
ORDER DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY AND DIRECTING THE CLERK TO CLOSE THEACTION
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 March 22, 2012 (doc. 4). Pending before the Court is the petition, which was filed on March 9, 2012.
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; 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 at 491. 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 alleges that he is an inmate of the Kern Valley State Prison (KVSP) serving a sentence of fifty-four years to life imposed in the Tulare County Superior Court in June 2009 for attempted murder with gang and gun enhancements. (Pet. 2.) Petitioner raises the following claims in the petition: 1) the trial court abused its discretion in denying Petitioner's motion to sever counts 1 and 2 from counts 3 through 7 because counts 3 through 7 were not eligible for joinder under Cal. Pen. Code § 954; 2) the failure to sever and the introduction of inflammatory gang predicate evidence violated Petitioner's right to due process and a fair trial; 3) the prosecutor committed prejudicial misconduct by vouching for two key prosecution witnesses and impeaching a defense witness with a non-existent criminal offense, which violated Petitioner's Fourteenth Amendment right to due process and a fair trial; 4) trial counsel's failure to impeach witness Rodriguez with prior convictions, request an instruction limiting use of the evidence of gang activity, object to the court's directions regarding gang expert testimony, object on the basis of due process and pursuant to Cal. Evid. Code § 352 to predicate crime gang evidence, request an in-custody protective instruction, object and request admonitions concerning various instances of prosecutorial misconduct, impeach witness Rodriguez with prior convictions, request a prophylactic gang evidence instruction, object to unspecified, related misinstructions, challenge inflammatory gang evidence, and request an instruction to prevent diminution of the presumption of innocence all constituted prejudicial, ineffective assistance of counsel; 5) incorrect instructions on imperfect self-defense violated Petitioner's Fourteenth Amendment right to due process and a fair trial; and 6) cumulative prejudice from the matters forming the substance of many of the aforementioned claims violated Petitioner's right to due process of law. (Pet. 3-12.)
Petitioner's first claim concerning severance was dismissed without leave to amend as a state law claim. Petitioner had neither alleged that all his claims were presented to the California Supreme Court nor provided this Court with documentation showing that all the claims had been presented to the California Supreme Court. Accordingly, this Court issued an order to Petitioner to show cause why the petition should not be dismissed for failure to exhaust state court remedies as to some of the claims. The order also permitted Petitioner to move to amend the petition to name a proper respondent in order to avoid dismissal for lack of subject matter jurisdiction.
The order to show cause (OSC) issued on April 23, 2012, and was served by mail on Petitioner on the same date. (Doc. 5.) Petitioner responded to the OSC and moved to amend the petition to name a proper respondent. On November 7, 2012, the petition was amended to name the present respondent, and the order to show cause was discharged.
With respect to exhaustion, the Court noted in the order to show cause that in substance, Petitioner had alleged in the petition that he had presented to the California Supreme Court the following issues: 1) abuse of discretion by the trial court; 2) inadequate defense counsel; and 3) prosecutorial misconduct. (Pet. 13.) Although Petitioner's allegations were not sufficiently precise to be understood with certainty, it appeared that Petitioner did not raise the claims concerning instructional error and cumulative error.
In his response to the order to show cause, Petitioner stated that he failed to exhaust state court remedies with respect to the second claim concerning a violation of due process and the right to a fair trial by the failure to sever or bifurcate gang evidence, the fifth claim concerning instructional error with respect to imperfect self-defense, and the sixth claim concerning cumulative prejudice from a combination of some of the other errors. (Response, doc. 9, 2-3.) Petitioner admitted that his petition is a "mixed" petition containing some unexhausted claims and some claims as to which state court remedies were exhausted. Petitioner requested that the Court either dismiss the petition without prejudice to give Petitioner an opportunity to exhaust the unexhausted claims, or give Petitioner an opportunity to amend the petition to delete the unexhausted claims and permit review of the properly exhausted claims. (Id. at 2-3.)
On November 7, 2012, the Court directed Petitioner to withdraw his unexhausted claims within thirty days of service or suffer dismissal of the petition. The order was served by mail on Petitioner on the same ...