The opinion of the court was delivered by: Lawrence J. O'Neill United States District Judge
ORDER RE: FINDINGS AND RECOMMENDATIONS REGARDING RESPONDENT'S MOTION TO DISMISS THE PETITION (Docs. 11, 8) ) ORDER GRANTING PETITIONER'S ) MOTION TO FILE THE PROPOSED FIRST ) AMENDED PETITION (Doc. 19) ) ORDER DIRECTING THE CLERK TO FILE THE PROPOSED FIRST AMENDED PETITION AS THE FIRST AMENDED PETITION (Doc. 19 at pages 4-34) ORDER DECLINING RESPONDENT'S REQUEST TO LIMIT THE CLAIMS IN THE FIRST AMENDED PETITION (Doc. 20) ORDER REFERRING THE MATTER BACK TO THE MAGISTRATE JUDGE FOR FURTHER SCREENING
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. The matter was been referred to the Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1) and Local Rules 302 and 304.
On July 26, 2012, the Magistrate Judge filed findings and recommendations regarding Respondent's motion to dismiss the petition on the ground that as to some of the claims in the petition, Petitioner failed to exhaust his state court remedies. It was recommended that the Court find that Petitioner had exhausted state court remedies as to some claims but had failed to exhaust state court remedies as to other claims, and that Petitioner be given thirty (30) days within which to move to withdraw his unexhausted claims.
The findings and recommendations were served on Petitioner on July 26, 2012. The findings and recommendations informed Petitioner that objections were due within thirty days of service.
After several extensions of time, Petitioner filed on January 2, 2013, a document denominated as objections to the findings and recommendations, but which Petitioner represented were objections "only to the extent that the petitioner opts to amend his petition to eliminate the unexhausted claims, and file an amended petition that contains no unexhausted claims, and is based wholly on the Petition for Review to the California Supreme Court." (Doc. 19, 1.) Petitioner attached a proposed first amended petition to his filing. (Doc. 19, 4-34.) It thus appears that 1) Petitioner has no objections to the findings and recommendations concerning the unopposed motion to dismiss, and 2) Petitioner has moved to file an amended petition, which is fully consistent with the Magistrate Judge's ultimate recommendation in the findings and recommendations.
On January 9, 2012, Respondent filed a reply to the objections and a response to the motion to file an amended petition in which Respondent argued that as to one of the sub-claims in the proposed first amended petition, Petitioner had not exhausted his state court remedies. Respondent did not otherwise oppose the filing of the amended petition, but Respondent requested that he not be required to answer the unexhausted sub-claim.
II. The Findings and Recommendations In accordance with the provisions of 28 U.S.C. § 636 (b)(1)(C), this Court has conducted a de novo review of the case. The undersigned has carefully reviewed the entire file and has considered the objections; the undersigned has determined there is no need to modify the findings and recommendations based on the points raised in the objections. The Court finds that the report and the express recommendations are supported by the record and proper analysis.
The Magistrate Judge correctly concluded that, as Respondent argued in the motion to dismiss, Petitioner failed to raise before the California Supreme Court a claim or sub-claim that the in-field identification that followed the arrest was unduly suggestive. Further, the Magistrate Judge correctly concluded that Petitioner's cumulative error claim was not raised before the California Supreme Court.
Accordingly, as the Magistrate Judge indicated, the initially filed petition is a mixed petition subject to dismissal. The Magistrate Judge correctly recommended that Petitioner be permitted to move to withdraw his claims as to which state court remedies were not exhausted.
Accordingly, the Court will adopt the recommendations of the Magistrate Judge.
III. Filing of the Proposed First Amended Petition The claims that Petitioner seeks to raise in his proposed first amended petition (FAP) are as follows: 1) Petitioner's arrest was without probable cause, and thus the evidence resulting from the arrest must be suppressed; 2) Petitioner's three-hour detention was excessive under the Fourth Amendment; 3) Petitioner's statements were obtained involuntarily and must be suppressed; 4) the trial court's failure to give lesser-included-offense instructions was a violation of due process; and 5) trial counsel was ineffective and made an unreasonable, prejudicial, professional decision in conceding to the jury that the Petitioner was the shooter. (Doc. 19, 5.)
In the reply, Respondent argues that Petitioner did not exhaust state court remedies as to Petitioner's claim that physical evidence should be suppressed as a result of his arrest without probable cause. Respondent bases this position on the Magistrate Judge's observation in the findings and recommendations that Petitioner did not expressly mention physical evidence or the identification as fruits of Petitioner's arrest or detention, and that consequently, their admissibility was not presented to the California Supreme Court.
It is true that in the petition for review, no specific evidence was expressly identified as fruits of the unlawful arrest. (LD 3.) However, Petitioner's argument heading asserted directly that the evidence obtained as a result of the arrest must be suppressed because the arrest violated the Fourth Amendment. (LD 3, i (item 1.) *fn1 Further, Petitioner attached as an exhibit to the petition for review the appellate decision of the Court of Appeal of the State of California, Fifth Appellate District (CCA). (Id. at 1.) In the petition for review, Petitioner expressly adopted the statement of the case and facts from the CCA's decision. (Id. at 3.) The CCA's statement of the case and facts detailed responding law enforcement officers' discovery of Petitioner, his confederates, shoe prints on the side of a hill a short distance from the site of the officers' initial encounter with Petitioner, a trail of shoe prints leading back to the property where the Petitioner's offense occurred, a shotgun ...