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Gellock v. Martel

United States District Court, E.D. California

May 7, 2018

EDWARD CHARLES GELLOCK, Petitioner,
v.
M. MARTEL, Respondent.

          ORDER AND FINDINGS AND RECOMMENDATIONS

          KENDALL J. NEWMAN, UNITED STATES MAGISTRATE JUDGE

         I. Introduction

         Petitioner, a state prisoner, is proceeding pro se and in forma pauperis. Respondent moves to dismiss the petition as a mixed petition, based on petitioner's alleged failure to exhaust. Petitioner filed a motion for stay and abeyance. As discussed below, the undersigned recommends that petitioner's motion for stay be denied, respondent's motion to dismiss be granted, and petitioner be ordered to file an amended petition raising only exhausted claims.

         II. Background

         1. In 2012, petitioner was convicted of multiple counts of forcible sex crimes. (ECF No. 1; Respondent's Lodged Document (“LD”) 1 at 1.) The trial court found true the allegation that petitioner had four prior serious felony convictions. (LD 1 at 1.) Petitioner was sentenced to 200 years in state prison. (ECF No. 1 at 1; LD 1 at 1.)

         2. Petitioner filed a timely appeal in the California Court of Appeal, Third Appellate District. On April 11, 2016, the state appellate court affirmed the conviction. (LD 1.)

         3. Petitioner filed a petition for review in the California Supreme Court. (LD 2.) The California Supreme Court denied the petition on June 15, 2016. (LD 3.)

         In his petition for review, petitioner raised two claims: (a) the trial court violated the Fourth Amendment when it found the warrantless entry into petitioner's apartment was excused by the community caretaking exception; and (b) the trial court violated the Fourth Amendment by denying petitioner's suppression motion based on his voluntary consent. (LD 2.)

         4. Petitioner filed no other post-conviction collateral challenges in state court.

         5. Petitioner filed the instant petition on September 14, 2017. (ECF No. 1.)

         III. Legal Standards

         Rule 4 of the Rules Governing Section 2254 Cases allows a district court to dismiss a petition if it “plainly appears from the face of the petition and any exhibits annexed to it that the petitioner is not entitled to relief in the district court. . . .” Id. The Court of Appeals for the Ninth Circuit has referred to a respondent's motion to dismiss as a request for the court to dismiss under Rule 4 of the Rules Governing § 2254 Cases. See, e.g., O'Bremski v. Maass, 915 F.2d 418, 420 (1991). Accordingly, the court reviews respondent's motion to dismiss pursuant to its authority under Rule 4.

         IV. Alleged Failure to Exhaust

         A. Exhaustion Standards

         The 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).[1] 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. Pi ...


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