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Forch v. Paramo

United States District Court, C.D. California

January 31, 2014

FRANKLIN LARANCE FORCH, Petitioner,
v.
DANIEL PARAMO, et al., Respondents.

REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

ANDREW J. GUILFORD. Magistrate Judge.

This Report and Recommendation is submitted to the Honorable Andrew J. Guilford, United States District Judge, pursuant to 28 U.S.C. section 636 and General Order 05-07 of the United States District Court for the Central District of California.

PROCEEDINGS

On September 26, 2012, Petitioner, a state prisoner, filed a "Petition for Writ of Habeas Corpus" in the United States District Court for the Southern District of California. On October 1, 2012, the United States District Court for the Southern District of California transferred the action to this Court.

The Petition originally alleged four "Grounds." On February 1, 2013, Respondent filed an Answer, contending inter alia that Grounds One, Three and Four of the Petition were unexhausted. Petitioner filed a "Motion for Traverse" on February 27, 2013.

On July 31, 2013, the Court issued an "Order Re Exhaustion Issues, " ruling that certain of Petitioner's claims were unexhausted and ordering Petitioner to file: (1) a document stating Petitioner's intent to delete Petitioner's unexhausted claims; (2) a document requesting dismissal of this entire proceeding without prejudice; or (3) a motion for a stay pursuant to Rhines v. Weber , 544 U.S. 269, 273-74 (1995) ("Rhines") and/or Kelly v. Small , 315 F.3d 1063 (9th Cir.), cert. denied, 548 U.S. 1042 (2003), overruled on other grounds, Robbins v. Carey , 481 F.3d 1143 (9th Cir. 2007) ("Kelly").

On August 30, 2013, Petitioner filed a "Motion for a Stay of Ruling of Habeas Corpus." On September 25, 2013, the Court issued an "Order Denying Motion for Stay, " ruling that Petitioner was not entitled to a stay under either Rhines or Kelly. The Court ordered Petitioner to dismiss the Petition in its entirety or to dismiss all of the unexhausted claims ("Order Denying Motion for Stay" at 6-8). Petitioner failed to comply with this Order within the allotted time.

On November 19, 2013, the Magistrate Judge filed a "Report and Recommendation of United States Magistrate Judge" ("the prior report"). The prior report recommended that the Petition be denied and dismissed without prejudice for failure to comply with the Court's September 25, 2013 Order.

On December 4, 2013, Petitioner filed a "Written Statement of Objection to Report and Recommendation" ("the prior objection"). The Court construed the prior objection as Petitioner's belated notice of voluntary dismissal of Petitioner's unexhausted claims. See Minute Order filed December 9, 2013. The prior report therefore was withdrawn, and the Court ordered supplemental briefing on Ground Two of the Petition, Petitioner's only remaining Ground (id.).[1]

Respondent filed a Supplemental Answer on January 7, 2014. Petitioner filed an "Answer Supplemental to Habeus [sic] Corpus" on January 22, 2014.

BACKGROUND

Pursuant to a plea of no contest, Petitioner was convicted of second degree murder (Lodged Documents 1 and 2). The Superior Court denied Petitioner's request for a certificate of probable cause (Lodged Document 3 at n.1). Petitioner's appellate counsel filed a Wende[2] brief (id. at 4; Lodged Document 9). Petitioner filed several letters with the California Court of Appeal, and received several extensions of time within which to file a supplemental brief (Lodged Document 3 at 5). After these extensions expired, and after the Court of Appeal denied Petitioner's requests for a further extension, the Court of Appeal affirmed the conviction in a reasoned decision (id.). The Court of Appeal stated, inter alia: "Having examined the entire record and considered the contents of defendant's letters, we are satisfied that defendant's appellate counsel has fully complied with his responsibilities and that no arguable issues exist" (id. at 5). Petitioner did not file a petition for review in the California Supreme Court.[3]

Petitioner subsequently filed several habeas corpus petitions in the California Supreme Court. See "Order re Exhaustion Issues, " filed July 31, 2013, at 2-3. The California Supreme Court summarily denied these petitions. See id.

In Ground Two, Petitioner's only remaining Ground, Petitioner contends: (1) appellate counsel allegedly rendered ineffective assistance by failing to show "just cause" for a "new trial" and by failing to prove Petitioner's supposed innocence; and (2) the actions of prison staff in allegedly harassing and intimidating Petitioner, confining Petitioner in administrative segregation and denying Petitioner ...


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