United States District Court, C.D. California
Ryan Christopher Wheatley, Petitioner, Pro se, Jamestown, CA.
For Heidi M Lackner, Warden, Respondent: David Delgado-Rucci, CAAG - Office of the Attorney General, California Department of Justice, San Diego, CA.
ORDER WITHDRAWING DEC. 15, 2014 REPORT AND RECOMMENDATION; SECOND REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
RALPH ZAREFSKY, UNITED STATES MAGISTRATE JUDGE.
Petitioner filed the First Amended Petition (1AP) on January 12, 2015. The Court thus WITHDRAWS the December 15, 2015 Report And Recommendation, for that Report urged the dismissal of the now-superseded initial petition as " mixed."
In the prior Report's place, and pursuant to 28 U.S.C. § 636 and General Order 05-07 of the United States District Court for the Central District of California, the undersigned submits this Second Report and Recommendation to the Honorable Christina A. Snyder, United States District Judge. Instead of presenting only exhausted claims in the 1AP, Petitioner mysteriously presents only unexhausted claims. If Petitioner has not filed a fully exhausted further amended Petition within the time for Objections to this Second Report, then he undersigned recommends that the Court dismiss the 1AP without prejudice as entirely unexhausted.
A district court presented with an entirely unexhausted petition may, or even must, dismiss the action. Rasberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir. 2006) (" Once a district court determines that a habeas petition contains only unexhausted claims, it need not inquire further as to the petitioner's intentions. Instead, it may simply dismiss the habeas petition for failure to exhaust."), citing Jiminez v. Rice, 276 F.3d 478, 481 (9th Cir. 2001) (district court is " obliged to dismiss [an entirely unexhausted petition] immediately" once respondent moves for such dismissal).
As explained in the prior Report, the initial petition was " mixed" because two of its four claims had not been exhausted in the California Supreme Court. The unexhausted claims were Claim 1 (improper exclusion of evidence) and Claim 4 (cumulative error). The prior Report urged the District Judge to dismiss the action " if and only if Petitioner fails to file a timely First Amended Petition that presents only his unexhausted claims for relief." Unfortunately for Petitioner, instead of omitting these two unexhausted claims in the 1AP, he includes them -- while omitting the two exhausted claims. 1AP ¶ ¶ 8(a), 8(b).
Petitioner checks boxes on the form 1AP stating that he " raise[d]" each of the two claims " in a habeas petition to the California Supreme Court." 1AP ¶ ¶ 8(a)(4), 8(b)(4). He did not. The Court takes judicial notice, based a January 15, 2015 search of appellatecases.courtinfo.ca.gov, that no one named Ryan Wheatley has ever filed any habeas action in the California Supreme Court. Ryan Wheatley's only case there was his direct appeal, which ended on November 13, 2013. A Raspberry dismissal is in order.
The undersigned cannot but wonder whether Petitioner mistakenly omitted the two claims he meant to retain (Claims 2 and 3 in the initial petition, which Respondent did not contend were unexhausted), while retaining the unexhausted claims he meant to omit. If so, Petitioner should forthwith file a Second Amended Petition (2AP) correcting this error. The Court GRANTS him leave to file a 2AP within the time allowed for filing Objections to this Second Report.
For the foregoing reasons, if Petitioner has not filed a 2AP that presents only exhausted claims within the time for Objections, then the Court should dismiss this action ...