United States District Court, E.D. California
ORDER VACATING FINDINGS AND RECOMMENDATION ISSUED MARCH 3, 2015, WHICH RECOMMENDED THAT THE PETITION BE DISMISSED (ECF No. 17) ORDER GRANTING PETITIONER'S MOTION TO WITHDRAW CLAIM 3 (ECF No. 18) 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 2011 conviction sustained in the Kern County Superior Court for murder and attempted murder while a member of a criminal street gang. Petitioner was sentenced to three consecutive terms of life without the possibility of parole, plus six consecutive terms of twenty-five years to life, plus three consecutive terms of seven years to life, plus a total determinate term of forty-three years. (LD 3).
Petitioner appealed to the California Court of Appeal Fifth Appellate District. (LD 2). On April 29, 2013, the Fifth Appellate District reversed the conviction on count 10 and instructed the superior court to correct a clerical error in the abstract of judgment, but otherwise affirmed the convictions and judgment. (LD 3).
On June 11, 2013, Petitioner filed a petition for review in the California Supreme Court. (LD 4). On August 14, 2013, the California Supreme Court denied the petition for review. (LD 5). Petitioner has not filed any habeas petitions in state court.
On August 13, 2014, Petitioner filed the instant petition for writ of habeas corpus. He raises the following three claims in his federal petition: 1) Prosecution's destruction of the photo line-up, which was exculpatory evidence, violated his due process rights; 2) Prosecution's improper use of recorded and transcribed jail house informant audio violated his rights; and 3) DNA testing was negative for Petitioner's DNA on the bag of marijuana and the fence, so the DNA testing did not establish that Petitioner was involved in the crimes.
On January 16, 2015, Respondent filed a motion to dismiss because Petitioner has not exhausted his second and third claims. (ECF No. 15). Petitioner did not file an opposition or statement of non-opposition to Respondent's motion to dismiss.
On March 3, 2015, the Court issued a Findings and Recommendation that recommended that Respondent's motion to dismiss be granted and the petition be dismissed without prejudice. (ECF No. 17). 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 the Findings and Recommendation. On March 9, 2015, Petitioner filed a document entitled "Proof of Exhaustion" that the Court will construe as a motion to withdraw claim three. (ECF No. 18).
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 ...