United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS
CAROLYN K. DELANEY, UNITED STATES MAGISTRATE JUDGE
is a state prisoner proceeding pro se in this action for
habeas corpus relief pursuant to 28 U.S.C. § 2254.
Currently pending before the court are respondent's
motion to dismiss the petition as well as petitioner's
motion to dismiss the unexhausted claims. ECF Nos. 12, 15.
For the reasons discussed herein, the undersigned recommends
granting respondent's motion to dismiss without prejudice
and denying petitioner's motion to delete the unexhausted
claims as moot.
was convicted following a jury trial in the Yolo County
Superior Court of conspiracy to commit attempted murder,
attempted premeditated murder, criminal street gang activity,
possession of a firearm by a person previously convicted of
criminal street gang activity, being a felon in possession of
a firearm, and a separate count of being a felon in
possession of ammunition. He was sentenced to an
indeterminate prison term of 7 years to life, a 20 year
firearm enhancement, and a separate determinate prison term
of 9 years.
his conviction, petitioner filed a direct appeal in the
California Court of Appeal which affirmed his convictions and
sentence on November 3, 2015. The California Supreme Court
denied his petition for review on January 13, 2016. A search
of the California state courts case information database
revealed no subsequent state habeas corpus petitions filed by
Motion to Dismiss
cursory two page motion to dismiss, respondent points out
that the habeas petition does not include a signature or
proof of service. ECF No. 12 at 1. It therefore violates Rule
11 of the Federal Rules of Civil Procedure as well as Rule 2
of the Rules Governing Section 2254 Cases. Id. at
1-2. Petitioner did not file a response to the motion to
lack of a response from petitioner prompted the court to
issue an order to show cause after reviewing petitioner's
federal habeas corpus application and the motion to dismiss.
ECF No. 13. The show cause required petitioner to notify the
court whether he intends: 1) to pursue habeas corpus relief
in the Yolo County Superior Court by filing a notice of
voluntary dismissal in this court; or, 2) to pursue federal
habeas corpus relief by filing an amended 28 U.S.C. §
2254 petition along with a motion for a stay and abeyance.
Motion to Delete Unexhausted Claims
response to this court's December 4, 2017 order to show
cause, petitioner filed a motion to delete the unexhausted
claims listed in his federal habeas corpus petition. ECF No.
15. Petitioner was advised of his stay and abeyance options
pursuant to either Rhines v. Weber, 544 U.S. 269
(1995), or King v. Ryan, 564 F.3d 1133, 1135 (9th
Cir. 2009) (citing three-step procedure of Kelly v.
Small, 315 F.3d 1063 (9th Cir. 2003)), but he has chosen
neither of those options. Instead, petitioner has elected
“to voluntarily dismiss all unexhausted claims and
continue forward with the exhausted claims.” ECF No.
15. Petitioner does not indicate any intention to return to
state court to properly exhaust his confrontation clause
challenge. Therefore, the court is left with an unsigned
federal habeas petition appearing to raise both sufficiency
challenges to the evidence presented at trial as well as an
unexhausted confrontation clause challenge to the use of
expert gang testimony.
has correctly pointed out that the instant federal habeas
application is not signed by petitioner in violation of Rule
2(c)(5) of the Rules Governing Habeas Corpus Cases Under
Section 2254. According to this rule, the petition must
“be signed under penalty of perjury by the petitioner
or by a person authorized to sign it for the petitioner under
28 U.S.C. § 2242.” Id. Accordingly, the
undersigned recommends dismissing petitioner's federal
habeas corpus application without prejudice to filing an
amended petition within 30 days from the district court
judge's review of these Findings and Recommendations.
light of this recommendation to allow petitioner to file an
amended habeas petition, the pending motion to delete the
unexhausted claims is rendered moot. However, in filing any
amended federal habeas application, petitioner is advised to
use the form previously provided by the Clerk of Court and to
identify each separate ground for relief. See Rule
2(c), Rules Governing Section 2254 Cases. If petitioner
chooses not to pursue the unexhausted confrontation clause
challenge or any other unexhausted claim, he may simply
choose to not list it as a claim for relief on the form
petition. Furthermore, although petitioner may submit a