United States District Court, E.D. California
FINDINGS AND RECOMMENDATION TO DENY PETITIONER'S MOTION TO STAY PETITION (ECF NO. 23) AND TO DISMISS PETITION WITHOUT PREJUDICE
STANLEY A. BOONE, 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 Kings County Superior Court for murder. (ECF No. 1 at 1). Petitioner was sentenced to life without parole. (Id.).
Petitioner appealed to the California Court of Appeal Fifth Appellate District. (LD 16). On June 5, 2013, the Fifth Appellate District affirmed the convictions and judgment. (LD 19). On July 15, 2013, Petitioner filed a petition for review in the California Supreme Court. (LD 20). On August 21, 2013, the California Supreme Court denied the petition for review. (LD 21).
On January 22, 2014, Petitioner filed a writ of habeas corpus in the Kings County Superior Court. (LD 22). On March 12, 2014, the Court denied Petitioner's habeas petition. (LD 23). On May 1, 2014, Petitioner filed a petition for writ of habeas corpus in the Fifth Appellate District. (LD 24). On May 15, 2014, the Fifth Appellate District denied the petition. (LD 25). On June 10, 2014, Petitioner filed a petition for writ of habeas corpus in the California Supreme Court. (LD 26). On August 13, 2014, the California Supreme Court denied the petition for writ of habeas corpus with a citation to In re Dixon, 41 Cal.2d 756, 759 (1953).
On September 10, 2014, Petitioner filed the instant petition for writ of habeas corpus. He raises the following claims in his federal petition: 1) His Confrontation Clause rights were violated when Officer Buhl testified about hearsay statements; 2) Officer Buhl's testimony violated Petitioner's due process rights because there was no showing of particularized guarantees of trustworthiness; 3) The trial court violated his due process and constitutional rights when it did not exclude confidential informant Garcia's testimony when the confidential informant had given him drugs and alcohol before eliciting incriminating statements; and 4) He received ineffective assistance of counsel because his counsel failed to make specific and timely objections to the admission of the evidence and testimony of confidential informant Garcia.
In Respondent's answer, he claims that Petitioner has not exhausted his ineffective assistance of counsel claim and also the first and second claims concerning Officer Buhl's testimony, except that the claims concerning Officer Buhl's testimony are exhausted to the extent that Petitioner's argument is construed as being that the state court unreasonably determined, even assuming error, that the admission of Deputy Buhl's testimony was harmless error. (ECF No. 18). Petitioner filed a motion to stay the petition. (ECF No. 23).
A. Preliminary Review
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 ...