United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS
ALLISON CLAIRE, Magistrate Judge.
Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Presently pending are two matters: (1) petitioner's motion to stay and abey this action, filed contemporaneously with his petition, ECF No. 2; and (2) respondent's motion to dismiss the petition, ECF No. 11. For the reasons set forth herein, this court recommends that respondent's motion to dismiss be granted, and petitioner's motion to stay be denied as moot.
II. Factual and Procedural Background
Based on an incident that occurred March 26, 2010, petitioner was charged in Yolo County Superior Court with attempted murder (in violation of California Penal Code §§ 664(a) and 187(a)) (Count 1); attempted second degree robbery (in violation of Penal Code §§ 664 and 211) (Count 2); and conspiracy to commit robbery (in violation of Penal Code §§ 182(a)(1) and 211) (Count 3). Each count included enhancement allegations of firearm use and infliction of great bodily injury. See Respondent's Lodged Doc. No. 2, Appendix before the Court of Appeal, at 001-004.
On February 6, 2012, in exchange for the dismissal of Counts 1 and 2 and a maximum prison term of 22 years, petitioner entered a guilty plea on Count 3 and admitted the enhancement allegations of firearm use (Penal Code § 12022.53(c)), and great bodily injury (id., § 12022.7(a)). See Lodged Doc. No. 2, Appendix at 005-012. The plea included an agreement that the great bodily injury enhancement would be dismissed at sentencing pursuant to a "Harvey waiver." Id.
On March 12, 2012, after imposing restitution and fines, and dismissing the great bodily injury enhancement, the trial court sentenced petitioner to a 22-year term of incarceration, based on the following calculation: Two years based on petitioner's conviction for "conspiracy to commit a felony" in violation of Section 182(a)(1),  and twenty years based on the firearm enhancement set forth in Section 12022.53(c). Lodged Doc. No. 2 at 013-022, 033. The trial court explained that its sentence under Section 182 was based on the "middle base term" of two years for second degree robbery. Id. at 20. Petitioner was represented by defense attorney Russell Miller throughout the trial court proceedings.
On April 26, 2012, court-appointed appellate counsel, William Malloy, filed a "Wende brief" in the California Court of Appeal, Third Appellate District. On May 10, 2013, the Court of Appeal affirmed petitioner's judgment of conviction, but directed the trial court to correct the abstract of judgment to properly reflect imposition of the low (rather than middle) term of two years as the base term for petitioner's conviction for conspiracy to commit robbery,  and to correctly identify the source of petitioner's conduct credits. Lodged Doc. No. 1 at 3 (Case No. C070957); see also People v. Eckes, 2013 WL 1984392 (Cal. App.3d 2013). Petitioner did not seek further direct review in the California Supreme Court.
Meanwhile, on May 8, 2013 (two days prior to the Court of Appeal's decision on direct review), and through a third attorney, Donald Masuda, petitioner filed a petition for writ of habeas corpus in the California Court of Appeal, Third Appellate District. Lodged Doc. No. 2. Petitioner contended that his sentence violated the California Penal Code because Section 182(a)(1) (felony conspiracy to commit a crime) is not among the enumerated felonies that qualify for enhancements under Section 12022.53(c). Petitioner argued that his twenty-year enhancement under Section 12022.53(c) should be stricken. Id . On May 16, 2013, the Court of Appeal summarily denied the petition. Lodged Doc. No. 3 (Case No. C073700).
On May 29, 2013, again through attorney Masuda, petitioner filed a petition for review in the California Supreme Court, on the same grounds asserted in his petition for writ of habeas corpus denied by the Court of Appeal. Lodged Doc. No. 4. Petitioner again contended that his sentence was unauthorized by California statutory law and that his enhancement should be stricken. Id . On July 24, 2013, the California Supreme Court summarily denied review. Lodged Doc. No. 5 (Case No. S211039).
Several months later, on May 9, 2014, through attorneys Tara Hoveland and Kent Russell, petitioner filed a petition for writ of habeas corpus in the Yolo County Superior Court. Lodged Doc. No. 6. Petitioner claimed that his constitutional rights to due process and effective assistance of counsel were violated by the failure of his trial counsel to argue that the felony to which petitioner pled guilty (Section 182) could not be enhanced by Section 12022.53(c). Petitioner asserted that, in response to his May 2013 petition for review before the California Supreme Court, the Attorney General conceded that petitioner's sentence was contrary to state statutory law but argued pursuant to People v. Hester , 22 Cal.4th 290, 295 (2000), that petitioner had forfeited his right to challenge his sentence because he had agreed to, and substantially benefitted from, his plea bargain. Lodged Doc. No. 6, Addendum to Superior Court Petition, at 2 n.6.
On June 17, 2014, while his May 2014 petition was pending in the Yolo County Superior Court, petitioner filed the instant, purportedly "mixed" federal habeas petition, which asserts the following two grounds for relief: (1) petitioner was deprived of due process and the effective assistance of trial counsel during plea negotiations and sentencing proceedings (Ground One), and (2) petitioner's sentence under Section 12022.53 constitutes a denial of due process and cruel and unusual punishment (Ground Two). ECF No. 1. The federal petition states that Ground One had not been exhausted in the state courts but was then pending in the Yolo County Superior Court. Id. at 12.
Also on June 17, 2014, petitioner filed a motion to stay and abey his federal petition, pursuant to Rhines v. Weber , 544 U.S. 269 (2005), until such time that Ground One is exhausted in the state courts. ECF No. 2. Petitioner explained that his federal petition was filed "protectively" to preserve Ground One without running past the statute of limitations. Petitioner requested that his federal habeas petition be stayed until Ground One is ruled on by the California Supreme Court.
By order filed June 20, 2014, this court directed respondent to respond to petitioner's federal habeas petition and to petitioner's motion to stay. ECF No. 4. On September 9, 2014, respondent filed the instant motion to dismiss and to deny petitioner's stay request. ECF No. 11. Plaintiff filed an opposition, ECF No. 13, and respondent filed a reply, ECF No. 14.
Thereafter, petitioner filed two Notices of Decision concerning the exhaustion status of Ground One. On October 6, 2014, the Yolo County Superior Court summarily denied petitioner's habeas petition for failure "to make a prima facie showing that he is entitled to relief." ECF No. 15 (Case No. HC CR 14-20). On January 2, 2015, the California Court of Appeal, Third Appellate District, summarily denied his petition. ECF No. 16 (Case No. C077723). Review of the dockets in the California Court of Appeal and the California Supreme Court ...