The opinion of the court was delivered by: Stanley A. Boone United States Magistrate Judge
FINDINGS AND RECOMMENDATION REGARDING RESPONDENT'S MOTION TO DISMISS (ECF No. 18)
Petitioner is proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.
On January 12, 2009, in the Fresno County Superior Court, Petitioner was convicted by jury of two counts of home invasion robbery (Cal. Penal Code §§ 211/213(a)(1)(A)). It was also found that the principle discharged a firearm during the commission of those counts, causing death (Cal. Penal Code § 12022.53(d), (e)(1)). (CT*fn1 500-503.) In a bifurcated bench trial, the trial court convicted Petitioner of participating in a criminal street gang (Cal. Penal Code § 186.22(a)), and determined that he committed the robbery for the benefit of a criminal street gang (Cal. Penal Code § 186.22(b)(1)). (CT 543.) Petitioner was sentenced to 156 years to life in prison. (CT 555-600.)
On November 10, 2010, the California Court of Appeal for the Fifth District affirmed the judgment but remanded the case to the trial court to correct a sentencing error.
On December 6, 2010, Petitioner filed a petition for review in the California Supreme Court. On February 16, 2011, the California Supreme Court granted review and transferred the case back to the Court of Appeal to specifically consider a sentencing issue.
On April 15, 2011, the Court of Appeal again affirmed the convictions but modified
Petitioner filed the instant petition for writ of habeas corpus on May 14, 2012. On October 8, 2012, Respondent filed a motion to dismiss the petition for failure to exhaust the state court remedies. After receiving an extension of time, Petitioner filed an opposition on December 10, 2012.
I. Procedural Grounds for Motion to Dismiss
Rule 4 of the Rules Governing Section 2254 Cases allows a district court to dismiss a petition if it "plainly appears from the face of the petition and any exhibits annexed to it that the petitioner is not entitled to relief in the district court . . . ." The Advisory Committee Notes to Rule 5 of the Rules Governing Section 2254 Cases state that "an alleged failure to exhaust state remedies may be raised by the attorney general, thus avoiding the necessity of a formal answer as to that ground." The Ninth Circuit has referred to a respondent's motion to dismiss on the ground that the petitioner failed to exhaust state remedies as a request for the Court to dismiss under Rule 4 of the Rules Governing Section 2254 Cases. See e.g., O'Bremski v. Maass, 915 F.2d 418, 420 (1991); White v. Lewis, 874 F.2d 599, 602-03 (9th Cir. 1989); Hillery v. Pulley, 533 F.Supp. 1189, 1194 & n.12 (E.D. Cal. 1982). Based on the Rules Governing Section 2254 Cases and case law, the Court will review Respondent's motion for dismissal pursuant to its authority under Rule 4.
II. Exhaustion of State Remedies
A petitioner who is in state custody and wishes to collaterally challenge his conviction by a petition for writ of habeas corpus must exhaust state judicial remedies. 28 U.S.C. § 2254(b)(1). The exhaustion doctrine is based on comity to the state court and gives the state court the initial opportunity to correct the state's alleged constitutional deprivations. Coleman v. Thompson, 501 U.S. 722, 731, 111 S.Ct. 2546, 2554-55 (1991); ...