United States District Court, E.D. California
RONALD W. DEMARTHRA, JR., Petitioner,
PEOPLE OF THE STATE OF CALIFORNIA, Respondent.
FINDINGS AND RECOMMENDATIONS
ALLISON CLAIRE UNITED STATES MAGISTRATE JUDGE.
is a state prisoner proceeding pro se with a petition for
writ of habeas corpus pursuant to 28 U.S.C. § 2254.
Respondent moves to dismiss the petition as a “mixed
petition.” ECF No. 14. In response, petitioner requests
that the unexhausted claim be “stricken” and that
this action proceed on the exhausted claims. ECF No. 16. For
the reasons outlined below, the undersigned recommends that
respondent’s motion to dismiss be granted only as to
petitioner’s unexhausted claim (Ground 3).
habeas petition challenges petitioner’s conviction in
Sacramento County Superior Court for assault with a deadly
weapon and related offenses. ECF No. 1 at 2. The petition
sets forth three grounds for relief. In Grounds One and Two,
petitioner asserts that the admission of the complaining
witness’ preliminary hearing testimony, in lieu of his
live testimony at trial, violated petitioner’s Sixth
and Fourteenth Amendment rights. See id. at 3-4.
Ground One alleges that the prosecution failed to show that
the witness was unavailable at trial, while Ground Two
alleges that petitioner did not have the opportunity to cross
examine the witness during the preliminary hearing. See
id. In Ground Three, petitioner asserts that there was
insufficient evidence to support his conviction for assault.
Id. at 6.
order filed May 17, 2016, the court found that the petition
indicated that all of the above grounds were raised on direct
appeal, and that Grounds One and Two were included in the
petition for review filed in the California Supreme Court.
See ECF No. 8 at 2. The court found, however, that
petitioner did not list Ground Three (insufficiency of the
evidence to support the assault conviction) as one of the
issues raised in his petition to the California Supreme
Court. See id. The court directed petitioner to file
a notice with the court indicating whether Ground 3 is
exhausted. See id. at 2-4. The court explained to
petitioner that if Ground 3 is not exhausted, his options
were to (1) to seek a stay of all claims pending exhaustion
of Ground Three; (2) to voluntarily dismiss Ground Three and
seek a stay of Grounds One and Two only pending exhaustion of
Ground Three; or (3) to dismiss Ground Three and proceed on
Grounds One and Two without a stay. See id. at 2.
did not respond to the May 17, 2016 order, and the court
directed respondent to file a response to petitioner’s
habeas petition. ECF No. 9. On December 2, 2016, respondent
filed a motion to dismiss the petition on the ground that it
is a “mixed petitioner” because Ground Three is
unexhausted. ECF No. 14. Petitioner has now requested that
Ground Three be dismissed and that this habeas action proceed
on Grounds One and Two. ECF No. 16.
exhaustion of state court remedies is a prerequisite to the
granting of a petition for writ of habeas corpus. 28 U.S.C.
§ 2254(b)(1). If exhaustion is to be waived, it must be
waived explicitly by respondent’s counsel. 28 U.S.C.
§ 2254(b)(3). A waiver of exhaustion, thus, may not be
implied or inferred. A petitioner satisfies the exhaustion
requirement by providing the highest state court with a full
and fair opportunity to consider all claims before presenting
them to the federal court. Picard v. Connor, 404
U.S. 270, 276 (1971); Middleton v. Cupp, 768 F.2d
1083, 1086 (9th Cir. 1985).
documents submitted by respondent demonstrate that Ground
Three is in fact unexhausted. Grounds One, Two, and Three
were raised on direct appeal in the Third District Court of
Appeal. Lodged Doc. 1. Grounds One and Two were included in
the petition for review filed in the California Supreme
Court. Lodged Doc. 3. However, petitioner did not
include Ground Three (insufficiency of the evidence to
support the assault conviction) as an issue presented to the
California Supreme Court for review. See id.
Accordingly, Ground Three is unexhausted.
court will recommend that respondent’s motion to
dismiss be granted only as to petitioner’s unexhausted
claim (Ground Three). This habeas action will proceed only on
petitioner’s properly exhausted claims (Grounds One and
IT IS HEREBY RECOMMENDED that:
Respondent’s motion to dismiss (ECF No. 14) be granted
following claim and any included sub-claims be dismissed as
unexhausted: Ground Three;
Respondent be directed to file a response to
petitioner’s habeas petition addressing the remaining,
properly exhausted claims (Grounds 1 and 2) within sixty days
from the date of any order adopting these findings and
recommendations. See Rule 4, Fed. R. Governing
§ 2254 Cases. An answer shall be accompanied by all
transcripts and other documents relevant to the issues
presented in the petition. See Rule 5, Fed. R.
Governing § 2254 Cases; and
Petitioner be directed to file a reply, if any, within thirty
days after service of the answer.
findings and recommendations are submitted to the United
States District Judge assigned to this case, pursuant to the
provisions of 28 U.S.C. § 636(b)(1). Within fourteen
days after being served with these findings and
recommendations, any party may file written objections with
the court, which shall be captioned “Objections to
Magistrate Judge’s Findings and Recommendations.”
A copy of any objections filed with the court shall also be
served on all parties. The parties are advised that failure
to file ...