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Otto v. Tampkins

United States District Court, E.D. California

September 4, 2019

RUSSELL W. OTTO, Petitioner,
v.
CYNTHIA TAMPKINS, Respondent.

          ORDER AND FINDINGS AND RECOMMENDATIONS

          GREGORY G. HOLLOWS UNITED STATES MAGISTRATE JUDGE.

         Introduction and Summary

         Petitioner is a state prisoner proceeding in pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Pending before the court is respondent's motion to dismiss claiming petitioner has failed to exhaust his state court remedies for several of his claims. ECF No. 10. Petitioner has filed an opposition. ECF No. 15.

         Petitioner was convicted of several sex offenses committed against minors. He was sentenced to nine years and four months. ECF No. 1. Petitioner appealed his conviction which was denied on September 18, 2017. The direct review petition was denied on November 29, 2017. No. state habeas petitions were filed. The federal petition, filed on March 8, 2019, set forth a number of claims (detailed below). Respondent filed a motion to dismiss based on failure to exhaust some claims in the petition, i.e., a mixed petition, but recognized that a request for stay pending exhaustion might be appropriate. Petitioner opposed the motion essentially arguing that he had exhausted enough and no more was necessary.

         For the reasons set forth below, the undersigned recommends that the motion to dismiss be granted. However, the undersigned will order the Findings and Recommendation to be held in abeyance pending an opportunity for petitioner to request a stay of these federal proceedings to pursue state exhaustion. If no such request is made, or the request is otherwise inappropriate, the undersigned will submit the Findings and Recommendation to the assigned district judge for final action.

         The Federal Petition

         The federal petition alleges the following claims:

         1. Denial of Cross-Examination

a. By Not Permitting Impeachment of a Witness with Misdemeanor Convictions/Conduct
b. By Not Permitting Impeachment of “The Other Two Witnesses” with School Records

         2. Ineffective Assistance of Counsel (trial and appellate):

a. Improper Opening Argument by the Prosecutor
b. Seating a Witness (Police Detective) at the Prosecutor's Table
c. Failure to Cross-Examine Inconsistent Statements
d. Petitioner's Appellate Attorney Refused to Assist Petitioner in his ...

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