United States District Court, C.D. California
JUAN D. ALVAREZ, Petitioner,
FRANK CHAVEZ, Respondent
Juan D Alvarez, Petitioner, Pro se, Calipatria, CA.
For Frank Chavez, Respondent: Chung L Mar, CAAG - Office of Attorney General, California Department of Justice, Los Angeles, CA.
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE [DOCKET NO. 12]
Honorable Jacqueline Chooljian, UNITED STATES MAGISTRATE JUDGE.
This Report and Recommendation is submitted to the Honorable S. James Otero, United States District Judge, pursuant to 28 U.S.C. § 636 and General Order 05-07 of the United States District Court for the Central District of California.
On August 26, 2013, Juan D. Alvarez (" petitioner"), a state prisoner who is proceeding pro se, filed a Petition for Writ of Habeas Corpus (" Petition") challenging a 2011 conviction in Los Angeles County Superior Court on multiple grounds.
On March 7, 2014, respondent filed a Motion to Dismiss the Petition (" Motion to Dismiss" or " MTD") arguing that Grounds One and Two of the Petition (to the extent they raise cognizable federal claims) and Grounds Four and Five of the Petition are unexhausted, rendering the Petition " mixed" and subject to dismissal. (MTD at 4-7). Petitioner has not filed an opposition to the Motion to Dismiss and the deadline to do so has long since expired.
For the reasons explained below, this Court concludes that (1) the state-law predicates of petitioner's claims are not cognizable, subjecting such predicates to dismissal without prejudice; and (2) the federal predicates of Grounds One and Two of the Petition are unexhausted and the entirety of Grounds Four and Five of the Petition are unexhausted, rendering the Petition " mixed" and subject to dismissal without prejudice. Accordingly, this Court recommends that (1) the state-law predicates of petitioner's claims be dismissed without prejudice; and (2) the Petition be dismissed without prejudice unless prior to the deadline to file objections to this Report and Recommendation, petitioner files a First Amended Petition for Writ of Habeas Corpus omitting the unexhausted predicates and claims or otherwise notifies the Court that he elects to dismiss/otherwise abandon such predicates and claims.
II. PROCEDURAL HISTORY
A. Conviction and Direct Appeal
On or about April 5, 2011, a Los Angeles County Superior Court jury convicted petitioner of robbery and possession of a dirk or dagger. (Petition at 2; Lodged Doc. 2 at 2; Lodged Doc. 5 at 150-50A). On June 6, 2011, the trial court sentenced petitioner to 20 years and four months in state prison. (Petition at 2; Lodged Doc. 2 at 2; Lodged Doc. 5 at 169-71).
On May 24, 2012, the California Court of Appeal affirmed the judgment in a reasoned decision. (Petition at 3; Lodged Doc. 2).
Petitioner, through counsel, thereafter filed a petition for review in the California Supreme Court (" Petition for Review"), claiming: (1) the trial court's denial of petitioner's Pitchess motion as to Officer Gibbs was erroneous and deprived him of his right to a fair trial;  (2) this court must review the record of the " in camera" hearing to determine whether the trial court abused its discretion by ruling that personnel records of Officer Vasquez did not contain information that should have been disclosed;  and (3) because the object petitioner possessed does not fall within the statutory definition of a dirk or dagger, petitioner's conviction for possession of a dirk or dagger is not supported by sufficient evidence and therefore ...