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Rameses v. Lizarraga

United States District Court, E.D. California

April 4, 2018

ROBERT RAMESES, Petitioner,
v.
J. LIZARRAGA, Warden, Respondent.

          ORDER AND FINDINGS AND RECOMMENDATIONS

          ALLISON CLAIRE UNITED STATES MAGISTRATE JUDGE.

         I. Introduction

         Petitioner is a state prisoner proceeding pro se with this habeas corpus action filed pursuant to 28 U.S.C. § 2254. For the reasons that follow, the undersigned recommends that this action be dismissed for lack of federal habeas jurisdiction.

         II. In Forma Pauperis Application

         Examination of the in forma pauperis application reveals that petitioner is unable to afford the costs of suit. ECF No. 2. Accordingly, petitioner's application to proceed in forma pauperis will be granted. See 28 U.S.C. § 1915(a).

         III. Background

         Currently pending is petitioner's motion to stay this action while he exhausts additional claims in the state courts. See ECF No. 10. Petitioner filed his initial petition on October 30, 2017. ECF No. 1. The court initially construed the petition as a successive challenge to petitioner's 2001 conviction for violation of California Penal Code § 476a (fraudulent bank transactions), and sentence to a term of 25-years-to-life based on four convictions that qualified as “prior strikes” under California's “Three Strikes Law, ” California Penal Code § 667. See ECF No. 6. The prior “strike” convictions arise from a 1988 Florida case in which petitioner pled guilty to four counts of second degree murder and agreed to cooperate with local, state and federal law enforcement agencies concerning crimes involving the “Yahweh sect.” In exchange for his guilty plea, petitioner received a 22-year prison term, a new identity, and placement in the Federal Witness Protection Program. See ECF No. 1 at 52-65. Additionally, petitioner was accorded “the broadest type of use and derivative use immunity (but not transactional immunity) for crimes that were committed” by petitioner prior to the signing of the plea agreement. Id. at 59-60.

         Petitioner filed objections to the undersigned's recommendation this action be dismissed as successive, [1] asserting that the court had misconstrued the petition. Petitioner asserted that he was not challenging his 2001 conviction and sentence, but the state court's more recent denial of his petition for recall of sentencing and resentencing under California Propositions 36 and 47.[2] See ECF No. 8. Petitioner also asserted that he had exhausted his federal claims in the state courts. Id. Accordingly, the court vacated its November 3, 2017 findings and recommendations and granted petitioner thirty days to file an amended petition that clearly identified his federal claims. See ECF No. 9 (order filed Dec. 4, 2017). The court directed petitioner, in pertinent part, as follows:

In light of petitioner's representations, the findings and recommendations will be vacated and petitioner will be directed to file an amended petition for writ of habeas corpus that clarifies the judgment challenged. In amending, petitioner should use the form provided by the court, set forth all of the information requested on the form, and attach all pertinent state court rulings. Failure to comply with this order will confirm the undersigned's initial assessment that this action should be dismissed.

Id. at 1 (emphasis added).

         On December 26, 2017, petitioner filed the pending motion to stay these proceedings while he exhausts a “new” claim in the state courts. ECF No. 10. Petitioner did not file an amended petition as directed or otherwise identify his exhausted and unexhausted federal claims. Petitioner states only that, on October 11, 2017 (three weeks before filing the instant federal petition), he filed in the El Dorado County Superior Court a “Petition for Further Consideration of Petitioner's Recall and Resentencing Pursuant to Penal Code 1170.126(e)” (emphasis added), citing “new” California Supreme Court authority as set forth in People v. Estrada (July 24, 2017), 3 Cal. 5th 661. Petitioner asserts that this “New Supreme Court precedent . . . was not available to Petitioner when he filed his federal writ of habeas corpus.” ECF No. 10 at 2. Petitioner states that, on December 11, 2017, the “Honorable Judge Kenneth J. Melikian” (El Dorado County Superior Court Judge)[3] “denied Petitioner's Motion for Further Consideration of Petitioner's Recall and Resentencing Pursuant to Penal Code 1170.126(e), ” and that petitioner then “filed his Notice of Appeal in the Superior Court County of El Dorado.” ECF No. 10 at 3. (El Dorado Co. Sup. Ct. No. PC 20170499.)[4] On this basis, petitioner requests a stay of his instant federal petition under Rhines v. Weber, 544 U.S. 269 (2005).[5]

         IV. Legal Standards

         Under Rule 4 of the Rules Governing Section 2254 Cases, this court must summarily dismiss a petition for writ of habeas corpus filed by a state prisoner if it “plainly appears from the petition and any attached exhibits that ...


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