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Arismendez v. Baughman

United States District Court, E.D. California

May 7, 2018

ROLANDO ARISMENDEZ, Petitioner,
v.
DAVID BAUGHMAN, Respondent.[1]

          FINDINGS AND RECOMMENDATIONS

          CAROLYN K. DELANEY, UNITED STATES MAGISTRATE JUDGE

         Petitioner 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.

         I. Factual Background

         Petitioner 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.

         II. Procedural Background

         Following 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 petitioner.

         III. Motion to Dismiss

         In a 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 dismiss.

         The 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. Id.

         IV. Motion to Delete Unexhausted Claims

         In 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.

         V. Analysis

         Respondent 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.

         In 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 separate ...


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