United States District Court, C.D. California
MEMORANDUM OPINION AND ORDER GRANTING MOTION TO DISMISS AND DENYING CERTIFICATE OF APPEALABILITY
JOHN E. MCDERMOTT, Magistrate Judge.
Following a jury trial in Los Angeles County Superior Court case number BA373550, Petitioner was convicted of possession of a controlled substance for sale (Cal. Health & Safety Code § 11378). The jury found true the allegation that Petitioner possessed over 20 kilograms of methamphetamine (Cal. Health & Safety Code § 11370.4(b)(4)). The trial court sentenced Petitioner to sixteen years and four months in state prison. (Respondent's Lodged Document ("LD") 1 at 118, 174, 180-81, 211-12, 226.)
Petitioner appealed, and the California Court of Appeal affirmed the judgment on April 30, 2013. (LD 2-5.) Petitioner filed a petition for review in the California Supreme Court, which was denied on July 24, 2013. (LD 6-7.)
The public docket indicates that Petitioner did not file any habeas petitions in the California Supreme Court. (See http://appellatecases.courtinfo.ca.gov (last visited Dec. 5,
On January 29, 2014, Petitioner filed the instant Petition for Writ of Habeas Corpus ("Petition") pursuant to 28 U.S.C. § 2254.
On May 21, 2014, Respondent filed a Motion to Dismiss the Petition as unexhausted, arguing that Ground Five of the Petition has not been presented to the California Supreme Court. (Motion to Dismiss at 3-5.)
On July 1, 2014, the Court sua sponte granted Petitioner an extension of time to file an Opposition to the Motion to Dismiss to July 15, 2014. Petitioner did not file an Opposition.
On November 4, 2014, the Court issued an "Order Re: Election of Proceedings for Mixed Petition'" ("Order"), in which the Court informed Petitioner that Ground Five appeared to be unexhausted and ordered Petitioner to choose one of several options regarding how to proceed with his Petition. Among other choices, Petitioner was offered the opportunity to return to state court to exhaust Ground Five or to abandon Ground Five and proceed with his exhausted claims. The Court warned Petitioner that failure to respond to the Order could result in the Court granting Respondent's Motion to Dismiss.
To date, Petitioner has not responded to the Order or opposed the Motion to Dismiss.
Ground One: The trial court denied Petitioner's Sixth Amendment and due process rights by failing to instruct the jury with Petitioner's requested pinpoint instruction on the specific intent to sell narcotics. (Petition at 5.)
Ground Two: The prosecutor committed misconduct during closing argument by encouraging the jury to consider punishment. (Petition at 5-6.)
Ground Three: The trial court's explanation of reasonable doubt diluted the standard of proof and denied Petitioner's rights to due process and to a verdict of ...