United States District Court, E.D. California
RUSSELL W. OTTO, Petitioner,
CYNTHIA TAMPKINS, Respondent.
ORDER AND FINDINGS AND RECOMMENDATIONS
GREGORY G. HOLLOWS UNITED STATES MAGISTRATE JUDGE.
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.
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.
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
federal petition alleges the following claims:
Denial of Cross-Examination
a. By Not Permitting Impeachment of a Witness with
b. By Not Permitting Impeachment of “The Other Two
Witnesses” with School Records
Ineffective Assistance of Counsel (trial and appellate):
a. Improper Opening Argument by the Prosecutor
b. Seating a Witness (Police Detective) at the
c. Failure to Cross-Examine Inconsistent Statements
d. Petitioner's Appellate Attorney Refused to Assist
Petitioner in his ...