United States District Court, E.D. California
ORDER VACATING FINDINGS AND RECOMMENDATION ISSUED FEBRUARY 13, 2015 THAT HAD RECOMMENDED THE PETITION BE DISMISSED (ECF No. 23) AND DENYING PETITIONER'S MOTION TO WITHDRAW CLAIM 4 (ECF No. 24)
ORDER TO SHOW CAUSE
GARY S. AUSTIN, 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.
Petitioner challenges his 2010 conviction sustained in the Kings County Superior Court for two counts of attempted murder (counts 1&2), three counts of assault with a deadly weapon (counts 3, 4, and 5), one count of burglary (count 6), three counts of felony vandalism (counts 7, 8, and 9), and one count of active participation in a criminal street gang (count 10). (LD 4 at 2). The jury found true special allegations that Petitioner personally inflicted great bodily injury during the commission of counts 1, 2, 4, 5, 6, and 10, and that counts 1 through 9 were committed for the benefit of a criminal street gang. (LD 4 at 2). The jury found true two prior strike allegations. (LD 4 at 2). Petitioner was sentenced to a term of 194 years to life for that conviction, and he was also sentenced to three years and eight months in a prior case, case no. 09CM7180. (LD 4 at 3).
Petitioner appealed his decision to the California Court of Appeal Fifth Appellate District. (LD 1). On January 9, 2013, the Fifth Appellate District affirmed the judgment, but modified the sentence for count 2 of case no. 09CM7180. (LD 4 at 3, 23-25).
On February 19, 2013, Petitioner filed a petition for review in the California Supreme Court which raised five claims: 1) The number of vandalism violations under Section 594(a) is subject to People v Bailey, 55 Cal.2d 514 (1961) (the Bailey doctrine), and the jury should have been instructed on that rule to determine the correct number of violations; 2) California juries should be instructed on the Bailey doctrine in section 594 cases; 3) Trial counsel was ineffective for failing to assert that Petitioner should have been sentenced as a two strike defendant instead of a three strike defendant; 4) No California statute establishes conspiracy as a separate and independent theory of derivative criminal liability; and 5) There was insufficient evidence to support the jury's finding that Petitioner had inflicted great bodily injury on two of the victims. (LD 5). On April 17, 2013, the California Supreme Court denied the petition for review without prejudice to any relief to which Petitioner might be entitled after the California Supreme Court decided People v. Vargas. (LD 6). Petitioner has not filed any state habeas petitions.
On June 8, 2014, Petitioner filed the instant federal petition for writ of habeas corpus in the Sacramento Division of the Eastern District of California. On June 18, 2014, the petition was transferred to this Court. On September 5, 2014, Petitioner filed a motion to amend the petition to name a proper respondent. On August 8, 2014, the Court ordered Petitioner to show cause why the petition should not be dismissed for failure to exhaust state remedies. On October 14, 2014, Petitioner filed a response to the Court's order to show cause. On October 15, 2014, the Court ordered Respondent to file a response to the petition. On December 3, 2014, Respondent filed a motion to dismiss. Petitioner has not filed an opposition to the motion to dismiss.
Petitioner raises four claims in the instant federal petition: 1) Ineffective assistance of trial counsel for failing to bring multiple pre-trial motions and failing to conduct an adequate cross-examination of an officer and other witnesses; 2) Ineffective assistance of counsel for failure to object and prosecutorial misconduct for presenting certain evidence, trial court abused its discretion by entering false documents into evidence, and the prosecutor committed misconduct by entering false documents into evidence; 3) Ineffective assistance of counsel for failure to raise racial profiling by law enforcement in connection with the active participation in a street gang charge and felony vandalism charges; and 4) All issues brought in his state appellate brief. (Pet. at 6-9).
On December 3, 2014, Respondent filed a motion to dismiss the petition because the petition is a mixed petition. (ECF No. 21). On February 13, 2015, the undersigned issued a Findings and Recommendation that recommended that Respondent's motion to dismiss be granted and the petition for writ of habeas corpus be dismissed without prejudice. (ECF No. 23). In the Findings and Recommendation, Petitioner was given the option of moving to withdraw the unexhausted claims within thirty (30) days of the date of service of this Findings and Recommendation. On February 25, 2015, Petitioner submitted a motion to withdraw the unexhausted claims, but it was unsigned by Petitioner. (ECF No. 24). On March 3, 2015, the undersigned issued an order directing Petitioner to file a statement that he submitted the motion to withdraw the unexhausted claims and sign it under penalty of perjury. (ECF No. 25). On March 17, 2015, Petitioner filed a statement that was signed under penalty of perjury that he had filed the motion to withdraw the unexhausted claims. (ECF No. 26).
Rule 4 of the Rules Governing Section 2254 Cases requires the Court to make a preliminary review of each petition for writ of habeas corpus. The Court must dismiss a petition "[i]f it plainly appears from the face of the petition... that the petition is not entitled to relief." Rule 4 of the Rules Governing 2254 Cases. The Advisory Committee Notes to Rule 8 indicate that the Court may dismiss a petition for writ of habeas corpus, either on its own motion under Rule 4, pursuant to the respondent's motion to dismiss, or after an answer to the petition has been filed.
A petitioner who is in state custody and wishes to collaterally challenge his conviction by a petition for writ of habeas corpus must exhaust state judicial remedies. 28 U.S.C. § 2254(b)(1). The exhaustion doctrine is based on comity to the state court and gives the state court the initial opportunity to correct the state's alleged constitutional deprivations. Coleman v. Thompson, 501 U.S. 722, 731 ...