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Gilchrest v. Gore

United States District Court, S.D. California

May 23, 2018

MORRIS B. GILCHREST, Petitioner,
v.
WILLIAM GORE, Sheriff, Respondent.

          REPORT AND RECOMMENDATION GRANTING RESPONDANT'S MOTION TO DISMISS FIRST AMENDED PETITION FOR WRIT OF HABEAS CORPUS [ECF NO. 13]

          Hon. William V. Gallo United States Magistrate Judge

         I. INTRODUCTION

         On August 16, 2017, Petitioner Morris Gilchrest (“Petitioner”), a state prisoner proceeding pro se and in forma pauperis, filed a First Amended Petition for Writ of Habeas Corpus (“FAP”) pursuant to 28 U.S.C. § 2254, challenging his conviction for possession of methamphetamine for sale. (ECF No. 8) On October 16, 2017, Respondent William Gore filed a Motion to Dismiss the FAP arguing that Petitioner's claims are not ripe for federal review because he has not exhausted his state remedies. (ECF No. 14) Petitioner did not file an opposition.

         For the reasons discussed below, the court RECOMMENDS the motion be GRANTED and the Petition DISMISSED WITHOUT PREJUDICE.

         II. BACKGROUND

         A. State Court Proceedings

         On September 22, 2014, Petitioner pled guilty to possession of methamphetamine for sale and admitted that he had three prior drug-related convictions and a prison prior. (Lod. 2, ECF No. 14-3 at 1.) At an unspecified later date, Petitioner was released from custody and placed on probation. (Id.) On January 17, 2017, the state trial court found that Petitioner had violated the terms of this probation and sentenced him to prison for a term of eight years including three years in custody and five years of mandatory supervision (Id.)

         On March 2, 2017, Petitioner filed a Petition for Writ of Habeas Corpus in San Diego County Superior Court claiming ineffective assistance of counsel, “judicial misconduct, ” and actual innocence. (Id. at 2.) On April 6, 2017, the San Diego County Superior Court denied the petition. (Id. at 4.)

         On April 12, 2017, Petitioner filed a second Petition for Writ of Habeas Corpus in San Diego County Superior Court claiming: 1) illegal sentencing and the court's sentence violating the “‘double base term' sentencing regime;” 2) ineffective assistance of counsel; 3) California Proposition 57 violated the Fourteenth Amendment's due process and equal protection clauses; and 4) the state court misapplied custody credits. (Lod. 4, ECF No. 14-5.) On April 25, 2017, the San Diego County Superior Court summarily denied the petition as successive. (Id. at 3.)

         On April 24, 2017, one day prior to the Superior Court's ruling on Petitioner's second petition, Petitioner filed a petition for a writ of habeas corpus with the Supreme Court of California. (Lod. 6, ECF No. 14-6.) On July 12, 2017, the California Supreme Court denied the petition, citing In re Swain, 34 Cal.2d 300, 304, 209 P.2d 793 (1949), and People v. Duvall, 9 Cal.4th 464, 474, 37 Cal.Rptr.2d 259, 886 P.2d 1252 (1995). (Lod. 6, ECF No. 14-7.)

         B. Federal Court Proceedings

         On March 31, 2017, Petitioner filed a Petition for Writ of Habeas Corpus in federal court. (ECF No. 1.) On April 11, 2017, the first petition was dismissed without prejudice for failing to name a proper respondent and failing to exhaust state court remedies. (ECF No. 3.) On July 26, 2017, Petitioner filed his FAP. (ECF No. 8.)

         On October 16, 2017, Respondent filed the present Motion to Dismiss First Amended Petition for Writ of Habeas Corpus. (ECF No. 13.) On November 13, 2017, Petitioner filed a motion requesting an extension of time by which to file an opposition. (ECF No. 15.) On January 8, 2018, the Court granted Petitioner's motion, extending the deadline of Petitioner's responsive filing to January 31, 2018. (ECF No. 17.) The deadline passed without Petitioner filing a response.

         III. L ...


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