United States District Court, E.D. California
ORDER AND FINDINGS AND RECOMMENDATIONS
KENDALL J. NEWMAN, UNITED STATES MAGISTRATE JUDGE
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.
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.)
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.)
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.)
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.)
Petitioner filed no other post-conviction collateral
challenges in state court.
Petitioner filed the instant petition on September 14, 2017.
(ECF No. 1.)
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.
Alleged Failure to Exhaust
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). 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 ...