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Kerry Roberts v. Domingo Uribe

March 11, 2013

KERRY ROBERTS,
PETITIONER,
v.
DOMINGO URIBE, RESPONDENT.



The opinion of the court was delivered by: Hayes, Judge:

ORDER

The matter before the Court is the review of the Report and Recommendation (ECF No. 18) issued by United States Magistrate Judge Barbara Lynn Major, recommending that this Court deny the Motion to Dismiss (ECF No. 11) filed by Respondent Domingo Uribe.

BACKGROUND

On November 21, 2008, a jury in San Diego County Superior Court found Petitioner guilty of five counts of robbery and one count of burglary. (ECF No. 1 at 1-2; Lodgment 4 at 1). Petitioner admitted one prior strike and two prior prison terms. (Lodgment 4 at 1). The state court sentenced Petitioner to a determinate prison term of twenty-one years and four months. (ECF No. 1 at 1-2; Lodgment 4 at 1).

On May 17, 2010, the California Court of Appeal affirmed the judgment of the trial court in an unpublished opinion. (Lodgment 4). On July 21, 2010, the California Supreme Court denied Petitioner's petition for review without comment. (Lodgment 6).

On March 29, 2011, the San Diego County Superior Court denied Petitioner's petition for writ of habeas corpus. (Lodgment 10). On July 19, 2011, the California Court of Appeal denied Petitioner's habeas petition. (Lodgment 12). On February 1, 2012, the California Supreme Court denied Petitioner's habeas petition. (Lodgment 14).

On November 14, 2011, Petitioner filed a Petition for Writ of Habeas Corpus ("Petition") pursuant to 28 U.S.C. § 2254 in this Court. (ECF No. 1). Petitioner alleges his federal constitutional rights were violated on seven grounds: (1) the state trial court erred in denying Petitioner's Marsden motion; (2) the state trial court erred in denying Petitioner's Faretta rights; (3) Petitioner's state trial counsel had a conflict of interest; (4) Petitioner and his state trial counsel had irreconcilable differences; (5) Petitioner's state trial counsel was ineffective; (6) the state trial court denied Petitioner's motion to exclude evidence of identifications, based on an allegedly unduly suggestive photo lineup, in violation of Petitioner's due process rights; and (7) the trial court gave jury instructions on flight as evidence of guilt when the identity of the perpetrators was at issue, thereby depriving Petitioner of his right to a fair trial. Id. at 6-25.

On January 17, 2012, Respondent filed a motion to dismiss the Petition on the grounds that the Petition contained unexhausted and procedurally defaulted claims (ECF No. 6), which the Court denied without prejudice on May 24, 2012. (ECF No. 9).

On August 7, 2012, Respondent filed the Motion to Dismiss currently pending before the Court. (ECF No. 11). Respondent contends that the Petition should be dismissed on the grounds that it contains both procedurally defaulted and unexhausted claims.

The docket reflects that Petitioner did not file an opposition to the Motion to Dismiss. On February 6, 2013, the Magistrate Judge issued the Report and Recommendation, recommending that the Motion to Dismiss be denied. (ECF No. 18 at 2, 15). The Report and Recommendation states:

[T]his Court finds that the petition contains two unexhausted claims (Claims 5 and 7) and five exhausted claims (1-4 and 6). Because the petition contains both exhausted and unexhausted claims, this Court is required to dismiss the petition. However, in lieu of immediate dismissal, this Court RECOMMENDS that Petitioner be sent an options order specifying Petitioner's options with regard to the mixed petition. If Petitioner does not elect one of the identified options, then this Court RECOMMENDS that the petition be DENIED.

Id. at 15.

The Report and Recommendation concludes: "[N]o later than February 27, 2013, any party to this action may file written objections with the Court and serve a copy on all parties.... The parties are advised that failure to file objections within the specified time may waive the right to raise those ...


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