The opinion of the court was delivered by: Allison Claire United States Magistrate Judge
FINDINGS & RECOMMENDATIONS
Petitioner is a former state prisoner who is proceeding pro se and in forma pauperis on a petition for relief under 28 U.S.C. § 2254. In 2009, following a jury trial, petitioner was convicted of stalking and was sentenced to two years in prison.
On May 31, 2012, the court directed respondent to respond to the petition. See ECF No. 14. Respondent has now moved to dismiss the petition for lack of jurisdiction. See ECF No. 19. Petitioner opposes the motion to dismiss (ECF No. 22), and has also filed two motions for summary judgment (ECF Nos. 18, 21). For the reasons outlined below, the undersigned recommends that the court grant respondent's motion to dismiss, and deny petitioner's motions for summary judgment as moot.
On July 23, 2009, petitioner was convicted by jury of felony stalking in violation of Cal. Penal Code § 646.9(a). Lodged Documents ("Log. Doc.") 1, 2, 3. On August 20, 2009, petitioner was sentenced to two years, and was awarded 189 days of credits (including 62 days "Local Conduct Credits"). Log. Doc. 1, 2.
On May 20, 2010, the state Superior Court granted petitioner's motion to correct his credits under Cal. Penal Code § 4019. Log. Doc. 3. Petitioner's credits were adjusted to 253 days, with 126 days Local Conduct Credits. Id.
On June 10, 2010, petitioner filed his first federal habeas petition in this court, Houze v. State of California, Case No. 2:10-cv-1479 GEB GGH ("Fed. Pet. 1"). Petitioner noted that his direct appeal was still pending at the Third Appellate District. See Case No. 2:10-cv-1479, ECF No. 1 at 2. Petitioner raised the following claims in Fed. Pet. 1: (1) investigating officer's testimony conflicted with that of victim; (2) petitioner was incorrectly charged with a felony instead of a misdemeanor; and (3) "no malicious act or intent to cause fear was stated by alleged victim." Id. at 4-5.
On August 16, 2010, after directing petitioner to show cause and receiving his response, the magistrate judge recommended that Fed. Pet. 1 be dismissed without prejudice for failure to exhaust. See Case No. 2:10-cv-1479, ECF No. 10. The magistrate judge noted that this court would not interfere with the petitioner's direct appeal. Id. On September 24, 2010, the district judge adopted the findings and recommendations in full, and dismissed the petition without prejudice. See Case No. 2:10-cv-1479, ECF No. 11.
On March 22, 2011, the state Court of Appeal, Third Appellate District adjusted petitioner's Local Conduct Credits to 127 days, and affirmed the sentence as modified. See Log. Doc. 4 (Case No. C062854). The issues raised in petitioner's appeal were: (1) introduction of uncharged acts, including evidence of petitioner's stalking another woman; (2) admissibility of "other crimes" evidence; (3) sufficiency of the evidence, because petitioner alleged that the prosecution failed to prove that petitioner made a credible threat of violence against the victim; and (4) calculation of conduct credits. Id. The court specifically noted that substantial evidence supported the conviction. See id. at 13.
On April 18, 2011, petitioner filed a petition for review with the state Supreme Court. See Log. Doc. 5 (Case No. S192294, ("State Pet. 1")). Petitioner argued that: (1) his charge should be reduced to a misdemeanor; (2) the elements of stalking were not proved (specifically, there was no malicious act, there was no credible threat, and petitioner did not intend to cause fear in the alleged victim); and (3) he received ineffective assistance of counsel, because his appellate attorney did not raise the two prior arguments in the Court of Appeals. Id.
On June 8, 2011, the state Supreme Court denied State Pet. 1 without citation to any authority. Log. Doc. 6.
On June 9, 2011, petitioner filed his second federal habeas petition in this court. See Houze v. State of California, Case No. 2:11-cv-1549 GEB GGH ("Fed. Pet. 2"), ECF No. 1. The issues raised in Fed. Pet. 2 are: (1) the statute under which petitioner was charged defines his offense as a misdemeanor; (2) conflicting testimony between investigating officer and victim;
(3) no malicious act was ever committed by petitioner; and (4) no threat was ever made. Id. at 4-5.
On June 27, 2011, petitioner was released from custody. Log. Doc. 7.
On January 26, 2012, the magistrate judge issued findings and recommendations in Fed. Pet. 2. See Case No. 2:11-cv-1549 GEB GGH, ECF No. 21. The magistrate judge found that petitioner had exhausted his claim that he had never made a threat, but that the other claims were unexhausted. Id. As petitioner had not requested a stay pursuant to Rhines v. Weber, 544 U.S. 269 (2005), and as the magistrate judge independently found no good cause to support a stay, the magistrate recommended dismissing the mixed petition without prejudice, pursuant to Rose v. Lundy, 455 U.S. 509 (1982). Id.
On January 31, 2012, petitioner filed his third federal habeas petition in this court.
Houze v. State of California, Case No. 2:12-cv-0251 LKK DAD ("Fed. Pet. 3"). The issues raised in Fed. Pet. 3 are: (1) inconsistent testimony between victim and investigating officer; and
(2) petitioner's crime should have been charged as a misdemeanor. See Case No. 2:12-cv-0251, ECF No. 1.
On February 8, 2012, petitioner filed objections to the magistrate's findings and recommendations in Fed. Pet. 2, in which he advised the court that he had filed a habeas petition with the state ...