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Bates v. Paramo

United States District Court, S.D. California

July 5, 2019

GILBERT JOSEPH BATES, Petitioner,
v.
DANIEL A. PARAMO, Warden, Respondent.

          REPORT AND RECOMMENDATION FOR ORDER: (1) DENYING RESPONDENT'S MOTION TO DISMISS WITHOUT PREJUDICE AND (2) FINDING MIXED PETITION AND ISSUING OPTIONS ORDER IN LIEU OF DISMISSAL [ECF NO. 12]

          HONORABLE MICHAEL S. BERG UNITED STATES MAGISTRATE JUDGE

         This Report and Recommendation is submitted to United States District Judge Michael M. Anello pursuant to 28 U.S.C. § 636(b) and Civil Local Rules 72.1(d) and HC.2 of the United States District Court for the Southern District of California. On July 9, 2018, Petitioner Gilbert Joseph Bates, a state prisoner proceeding pro se, commenced these habeas corpus proceedings pursuant to 28 U.S.C. § 2254 by filing his Petition for Writ of Habeas Corpus. (Pet., ECF No. 1.) On July 31, 2018, Petitioner filed his First Amended Petition for Writ of Habeas Corpus, the operative pleading in this case. (First Am. Pet., ECF No. 5.)

         Currently before the Court is Respondent's “Motion to Dismiss Petition for Writ of Habeas Corpus, ” (Mot. Dismiss, ECF No. 12-1 (“Mot. Dismiss”)), and Petitioner's opposition to the motion, (Opp'n, ECF No. 16 (“Opp'n”)). The Court has considered the First Amended Petition, Respondent's Motion to Dismiss, Petitioner's Opposition, and all other documents submitted by the parties. For the reasons set forth below, the Court RECOMMENDS that Respondent's Motion to Dismiss be DENIED WITHOUT PREJUDICE. In lieu of immediate dismissal, the Court RECOMMENDS that Petitioner be advised of the options available to him with regard to a mixed petition, and that Petitioner be given an opportunity to select one of the following options: (1) demonstrate exhaustion; (2) voluntarily dismiss the First Amended Petition; (3) formally abandon his unexhausted claims; or (4) file a motion to stay the federal proceedings.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         In 2005, Petitioner pleaded guilty to one count of corporal injury to a cohabitant resulting in a traumatic condition, (Cal. Pen. Code § 273.5(a)), admitted suffering two strike priors, (Cal. Pen. Code § 667(b)-(i)), and stipulated to a sentence of 25 years to life imprisonment. (Lodgment 2 at 2; see also Lodgment 1 at 6.) In 2006, the court imposed the stipulated sentence. (Lodgment 1 at 6-7.)

         On November 7, 2012, Proposition 36, also known as the Three Strikes Reform Act of 2012, became effective and modified California's Three Strikes law as it applies to certain third-strike indeterminate sentences. See Cal. Pen. Code § 1170.126. Proposition 36 created a post-conviction release mechanism for prisoners serving an indeterminate life sentence imposed under the Three Strikes law for a crime that is not a serious or violent felony to request the sentence be recalled and petitioner resentenced as a second strike offender, unless resentencing would pose an “unreasonable risk or danger to the public safety.” See id.; People v. Valencia, 3 Cal. 5th 347, 350 (2017); People v. Yearwood, 213 Cal.App.4th 161, 167-68 (Cal.Ct.App. 2013).

         On March 25, 2013, Petitioner filed a petition to recall his sentence pursuant to Proposition 36 in the San Diego County Superior Court. (See Lodgment 1 at 7; see also Lodgment 2 at 2.) The trial court found Petitioner eligible for resentencing, but denied his petition after determining that resentencing Petitioner would constitute an “unreasonable risk of danger to public safety.” (Id.)

         On March 3, 2015, Petitioner appealed to the California Court of Appeal. (Lodgment 1.) Petitioner alleged that the trial court abused its discretion when it found that he presented an unreasonable risk to public safety. (Id. at 11-40.) Petitioner also argued that he was entitled to a new hearing and the opportunity to demonstrate that he does not meet the test of an “unreasonable risk of danger to public safety” as established by Proposition 47. (Id. at 41-49.) The California Court of Appeal affirmed the judgment on July 16, 2015. (Lodgment 2.) On August 5, 2015, the California Court of Appeal issued an “Order Modifying Opinion and Denying Rehearing [No Change in Judgment].” (Lodgment 3, Appendix B.) The order replaced one sentence in the court's August 5, 2015 order, but expressly stated that “[t]here is no change in judgment.” (Id.)

         On August 25, 2015, Petitioner filed a petition for review in the California Supreme Court, raising the same two claims he raised in the California Court of Appeal. (See Lodgment 3 at 7-42; see also Lodgment 1 at 11-49.) Because the second issue regarding Proposition 47's impact on Proposition 36 was pending in the California Supreme Court in a different case, the court initially granted Petitioner's petition, but ordered any further action deferred until the resolution of the pending issue.[1](Lodgment 4.) On November 29, 2017, after the California Supreme Court resolved the issue unfavorably to Petitioner, it dismissed his petition for review. (Lodgment 5.)

         On July 31, 2018, Petitioner filed his First Amended Petition for Writ of Habeas Corpus. (First Am. Pet., ECF No. 5.) In its August 10, 2018 order, the Court required Respondent to file a motion to dismiss or an answer to the First Amended Petition by October 12, 2018, and Petitioner to file his opposition or traverse by November 12, 2018. (Order 2, ECF No. 6.) On October 4, 2018, Respondent moved for an extension of time to respond to the First Amended Petition. (Mot. Extension Time, ECF No. 8.) United States Magistrate Judge Jill L. Burkhardt granted the motion and ordered Respondent to file a motion to dismiss or an answer by November 13, 2018, and Petitioner to file his opposition or traverse by December 14, 2018. (Order 2, ECF No. 9.) On November 6, 2018, the case was transferred to United States Magistrate Judge Michael S. Berg. (Order Transfer, ECF No. 11.)

         Respondent timely filed a Motion to Dismiss, arguing that the First Amended Petition contains both exhausted and unexhausted claims, and Petitioner's only exhausted claim fails to raise a cognizable federal question. (See Mot. Dismiss.) On February 24, 2019, [2] Petitioner constructively filed a document titled “Notice of Motion for [E]xtension of [T]ime to [F]ile.” (Mot. Extension Time, ECF No. 14.) In the filing, Petitioner provided a letter from his state appellate counsel indicating that the one-year statute of limitations to present his federal claims in this Court expired on February 27, 2019. (Id. at 3-4.)

         On March 14, 2019, the Court issued an order noting that “[a]lthough not entirely clear, Petitioner may be requesting an extension of time to file an Opposition to Respondent's Motion to Dismiss, or he may be requesting an extension of time to exhaust state court remedies as to his unexhausted claims.” (Order 2, ECF No. 15.) In the order, the Court granted Petitioner leave to file his opposition or a motion for stay and abeyance by April 26, 2019. (Id. at 2, 4-5.) On April 9, 2019, Petitioner constructively filed an “Opposition to Respondent[']s Motion to Dismiss Filed March 14th 2019.” (Opp'n.)

         II. LEGAL STANDARD

         A federal court may not consider a petition for habeas corpus unless the petitioner has exhausted state remedies with respect to each claim raised. See 28 U.S.C. § 2254(b)(1)(A); Rose v. Lundy, 455 U.S. 509, 515 (1982). Exhaustion of a habeas petitioner's federal claims requires that they have been “fairly present[ed]” in each appropriate state court, including a state supreme court with powers of discretionary review, though presentation to the state ...


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