United States District Court, S.D. California
REPORT AND RECOMMENDATION FOR ORDER GRANTING
RESPONDENT'S MOTION TO DISMISS [ECF NO. 10]
Barbara L. Major United States Magistrate Judge.
Report and Recommendation is submitted to United States
District Judge Barry Ted Moskowitz pursuant to 28 U.S.C.
§ 636(b) and Civil Local Rules 72.1(d) and HC.2 of the
United States District Court for the Southern District of
California. On October 30, 2016, Anthony Bogarin
(“Petitioner”), a state prisoner proceeding
pro se and in forma pauperis, commenced
these habeas corpus proceedings pursuant to 28 U.S.C. §
2254 by constructively filing his Petition. ECF No. 1
(“Pet.”). On November 30, 2016, the Court advised
Petitioner that his petition could be dismissed unless he
provides the Court with the $5 filing fee or files a motion
to proceed in forma pauperis. ECF No. 3. On December
22, 2016, Petitioner filed a motion to proceed in formal
pauperis [ECF No. 5], and on January 6, 2017, the Court
granted Petitioner's motion [ECF No. 6]. Petitioner
challenges his conviction for attempted burglary in the first
degree. Pet. at 1-2. On January 12, 2017, the Court reopened
the case and issued a briefing schedule requiring Respondent
to file a motion to dismiss by March 20, 2017, and Petitioner
to file an opposition by April 19, 2017. ECF No. 7.
Respondent filed a motion to dismiss on March 17, 2017. ECF
No. 10-1 (“MTD”). After the Court granted
Petitioner an extension of time to file his opposition to
Respondent's motion to dismiss, Petitioner timely filed
his opposition Nunc Pro Tunc on June 2, 2017. ECF No. 15
(“Oppo.”); see ECF Nos. 12, 13.
Currently before the Court is Respondent's Motion to
Dismiss for lack of exhaustion [MTD] and Petitioner's
opposition [Oppo.]. For the reasons set forth below, the
Court RECOMMENDS that Respondent's motion to dismiss be
AND PROCEDURAL BACKGROUND
October 31, 2014, a jury convicted Petitioner of attempted
burglary in the first degree. See Lodgment 4 at 170;
Lodgment 1-3 at 240. The trial court found true that
Petitioner had two prison priors, two serious felony priors,
and four prior strike convictions. Lodgment 4 at 174. On
January 16, 2015, Petitioner was sentenced to twenty-five
years to life, plus ten years. See id. at 4 at 170;
Lodgment 1-3 at 260-61.
January 23, 2015, Petitioner filed a notice of appeal to the
California Court of Appeal. Lodgment No. 4 at 186. Petitioner
alleged: (1) there was insufficient evidence to support his
attempted burglary conviction, (2) the trial court erred in
admitting evidence of Petitioner's two prior burglary
convictions because he conceded intent, and (3) the abstract
of judgment must be corrected to accurately reflect the
Court's order at sentencing regarding custody credits.
Lodgment No. 5 at 6, 12, 23. On March 29, 2016, the Court of
Appeal for the Fourth Appellate District, Division One,
affirmed the judgment and ordered the court clerk to correct
the trial court's abstract of judgment to show an award
of 274 days of actual credits. Lodgment No. 8 at 18.
2, 2016, Petitioner filed a Petition for Review in the
California Supreme Court, contending that: (1) there was
insufficient evidence to support his attempted burglary
conviction, and (2) the trial court erred in admitting
evidence of Petitioner's two prior burglary convictions
because he conceded intent. Lodgment No. 9 at 2, 5; see
also Lodgment No. 10. On June 8, 2016, the California
Supreme Court summarily denied the petition without comment
or citation to authority. Lodgment No. 10. Petitioner did not
file a petition for certiorari in the United States Supreme
Court and did not file state habeas corpus petitions in any
California state court. Pet. at 3-5.
October 30, 2016, Petitioner constructively filed a federal
habeas petition in this Court. Id. He raises four
claims in the instant petition: (1) the trial court violated
his right to jury trial by imposing an upper term sentence
based on facts that were not found by the jury, (2) the use
of Petitioner's prior plea agreements as prior strike
convictions violated the terms set forth in those plea
agreements, constituting a breach of contract, (3) the trial
court committed constitutional error by imposing a sentence
that exceeded the maximum sentence based on the jury verdict
facts, and (4) the trial court's sentence violated
Petitioner's plea agreements for prior offenses.
Id. at 6-25.
28, United States Code, § 2254(a), sets forth the
following scope of review for federal habeas corpus claims:
The Supreme Court, a Justice thereof, a circuit judge, or a
district court shall entertain an application for a writ of
habeas corpus in behalf of a person in custody pursuant to
the judgment of a State court only on the ground that he is
in custody in violation of the Constitution or laws or
treaties of the United States.
28 U.S.C. § 2254(a) (2006 & Supp. 2016).
contends that the Petition should be dismissed because all
the claims are unexhausted. MTD at 4. Petitioner states that
his claims are exhausted and argues at length about a
multitude of errors committed during the state court
proceedings. Oppo. at 4, 4-12.
federal court may not consider a petition for habeas corpus
unless the petitioner has first presented his claims to the
state courts, thereby “exhausting” them. 28
U.S.C. §2254(b)(1)(A); Rose v. Lundy, 455 U.S.
509, 522 (1982). The exhaustion requirement is founded on
federal-state comity, as only when the state court has been
presented with the claim may it “pass upon and correct
alleged violations of its prisoners' federal
rights.” Duncan v. Henry, 513 U.S. 364, 365
(1995) (per curiam) (quotation marks and citations omitted).
Thus, exhaustion of a habeas petitioner's federal claims
requires that they have been “fairly present[ed]”
in each appropriate state court, including a state supreme
court with powers of discretionary review. Baldwin v.
Reese, 541 U.S. 27, 29 (2004). In California, this
generally entails direct or collateral presentation to both
the lower courts of appeal and the state supreme court,
though presentation to the state supreme court alone may
suffice. Reiger v. Christensen, 789 F.2d 1425, 1427
(9th Cir. 1986); Johnson v. Zenon, 88 F.3d 828, 829
(9th Cir. 1996). Claims are not exhausted by mere
presentation to the state appellate system. A petitioner must
also “alert  [the state] court to the federal nature
of the claim.” Baldwin, 541 U.S. at 29. A
petitioner may indicate a federal claim by citing the source