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Riley v. Johnson

United States District Court, C.D. California, Eastern Division

May 7, 2014

AMBER RILEY, Petitioner,
v.
DEBORAH K. JOHNSON, Respondent.

MEMORANDUM AND ORDER DISMISSING PETITION WITHOUT PREJUDICE

ANDREW J. WISTRICH, Magistrate Judge.

On October 10, 2013, petitioner filed a petition for a writ of habeas corpus. Respondent filed a motion to dismiss the petition on February 3, 2014.

As respondent points out, the petition is subject to dismissal based upon petitioner's failure to sign it. See Hendricks v. Vasquez , 908 F.2d 490, 491 (9th Cir. 1990) ("The district court may refuse to file, or may dismiss, an unsigned and unverified petition.... However, the defect is one that the district court may, if it sees fit, disregard.") (citations omitted). The signature line on the form indicates that it was signed by "Next of Friend." However, a non-attorney inmate may not "represent" petitioner. See C.D.Cal. Local Rule 83-2.10.2.

Further, it does not appear that petitioner has exhausted her state remedies with respect to all of her claims. See 28 U.S.C. ยง 2254(b)(1)(A) ("An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that the applicant has exhausted the remedies available in the courts of the State."). The petition raises the following claims for relief:

1. Petitioner received ineffective assistance of trial counsel because counsel (a) failed to investigate and present defenses, including a mental defense; (b) failed to use peremptory challenges to strike two jurors; (c) did not tell petitioner that she had a right to testify; (d) failed to challenge a stipulation that affected the motion to suppress her confession; and (e) failed to call witnesses and present evidence to show that petitioner was abused by her codefendant. [Petition, Ex. B at 3-7, 11-19].
2. Petitioner's confession was involuntary and should not have been admitted against her at trial. [Petition, Ex. B at 8-11].
3. Petitioner received ineffective assistance of counsel on appeal. [Petition, Ex. B at 17-19].
4. The prosecutor presented perjured testimony. [Petition, Ex. B at 22-33].
5. Petitioner was denied her right to an impartial judge. [Petition, Ex. B at 34-35].
6. The trial court abused its discretion by placing petitioner in restraints and ordering additional security measures. [Petition, Ex. B at 36-37].
7. Cumulative errors deprived petitioner of due process. [Petition, Ex. B at 49].

It appears, however, that petitioner has exhausted only the following claims for relief:

1. Petitioner's confession was involuntary and should not have been admitted against her at trial. [Motion to Dismiss, Ex. A (Petition for Review filed in the California Supreme Court)].
2. Petitioner received ineffective assistance of counsel because her trial attorney failed to investigate and present a mental defense. [Motion to Dismiss, Ex. F (habeas ...

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