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Hundal v. Diaz

United States District Court, E.D. California

September 5, 2019

RAMANJIT SINGH HUNDAL, Petitioner,
v.
RALPH DIAZ, Respondent.

          FINDINGS AND RECOMMENDATION TO DENY MOTION TO DISMISS AS MOOT FINDINGS AND RECOMMENDATION TO GRANT MOTION TO AMEND IN PART (DOCS. 12, 17, 19)

          JENNIFER L. THURSTON, UNITED STATES MAGISTRATE JUDGE.

         Because Petitioner has exhausted the claims subject of the motion to dismiss based on exhaustion, the motion is now moot. Additionally, because certain claims as described further below are unexhausted and others untimely, the Court will recommend that the motion to amend be granted in part.

         PROCEDURAL BACKGROUND

         Petitioner was convicted of two counts of murder, attempted murder, shooting at an occupied vehicle, shooting from a vehicle at a person, assault with a semiautomatic firearm and street terrorism. (LD 13-1, 13-2.[1]) Various street gang and firearm enhancements were found true. (LD 13-1, 13-2.) Petitioner was sentenced to an indeterminate state prison term of thirty-nine years, plus an indeterminate term of ninety years to life consecutive, plus two consecutive terms of life without the possibility of parole. (LD 13-1, 13-2.) On August 2, 2017, the California Court of Appeal, Fifth Appellate District struck two gang enhancement ten-year terms and corrected various errors in the abstract of judgment related to fines and restitution. (LD 13-2.) The judgment was otherwise affirmed. (LD 13-2.)

         On October 3, 2017, Petitioner filed a petition for review with the California Supreme Court raising two claims: (1) denial of due process for the murder conviction and the related special circumstances allegations because there was insufficient evidence that Petitioner knew of and shared the shooter's intent to kill (claim 1); and (2) denial of due process because the trial court failed to instruct the jury sua sponte with CALCRIM No. 225 (circumstantial evidence of specific intent) instead of CALCRIM No. 224 given that the primary issue at trial was whether Petitioner harbored the specific intent to kill (claim 2). (LD 13-3, 13-4.) On November 15, 2017, the California Supreme Court denied review. (LD 13-4.)

         Petitioner then filed the instant petition on March 13, 2019. (Doc. 1.) Petitioner raised seven claims in his petition: (1) insufficient evidence for the murder conviction; (2) failure to instruct the jury with CALCRIM No. 225; (3) insufficient evidence for gun use enhancements; (4) improper imposition of sentences for both the gang and gun enhancements in count six; (5) ineffective assistance of counsel; (6) denial of the right to a fair trial and the presumption of innocence; and (7) cumulative error. (Doc. 1.)

         On the same day, he filed a habeas petition in the California Supreme Court, raising three claims: (1) ineffective assistance of trial and appellate counsel (claim 5); (2) denial of the right to a fair trial and presumption of innocence (claim 6); and (3) cumulative error (claim 7). (LD 13-5.)

         On May 9, 2019, Respondent filed a motion to dismiss the habeas petition because it included unexhausted claims. (Doc. 12.) Specifically, Respondent argued that because the three claims raised in the habeas petition in the California Supreme Court (claims five, six and seven) were still pending at that time, those claims were unexhausted. (Doc. 12 at 3.) Respondent also contended that claims three and four of the federal petition were unexhausted because they had not been presented to the California Supreme Court. (Doc. 12 at 4.) Petitioner filed objections on May 28, 2019, contending that he anticipated the habeas petition in the California Supreme Court to be denied within a timely manner or in the alternative he requested for a stay. (Doc. 14 at 1-2.) Respondent did not file a reply to the opposition.

         Subsequently, on June 24, 2019, Petitioner filed “motion to show the courts and also respondent that all claims filed in original petition for writ of habeas corpus are now dully and fully exhausted therefore the respondent's motion to dismiss a mixed petition is moot and respondent should answer petition originally filed.” (Doc. 17.) Petitioner included as an exhibit the California Supreme Court's order denying the habeas petition on June 12, 2019. (Doc. 17 at 4.) Petitioner contended in his motion that all his claims are now fully exhausted, and Respondent's arguments in the motion to dismiss are moot. (Doc. 17 at 1-2.) Petitioner also abandoned his request for a stay, stating that was also moot. (Doc. 17 at 2.) Respondent construed Petitioner's “motion” as a motion to amend his petition and filed opposition on July 3, 2019. (Doc. 18.) Respondent contended that claims five, six and seven were exhausted as of Petitioner's motion filed on June 24, 2019. (Doc. 18 at 4.) However, Respondent argued that these claims (claims five, six and seven) were untimely. (Doc. 18 at 5-6.) Respondent also argued that claims three and four remained unexhausted because they had never been presented to the California Supreme Court, so the petition is mixed. (Doc. 18 at 4-5.)

         Petitioner then filed a motion to amend on July 22, 2019, requesting the Court to exclude unexhausted claims and proceed on the merits of exhausted claims. (Doc. 19.) To date, Respondent has not filed an opposition.

         DISCUSSION

         I. Procedural Grounds for Motion to Dismiss

         Rule 4 of the Rules Governing Section 2254 Cases allows a district court to dismiss a petition if it "plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court . . . ." Rule 4 of the Rules Governing Section 2254 Cases.

         The Ninth Circuit has allowed respondents to file a motion to dismiss in lieu of an answer if the motion attacks the pleadings for failing to exhaust state remedies or being in violation of the state's procedural rules. See, e.g., O'Bremski v . Maass, 915 F.2d 418, 420 (9th Cir. 1990) (using Rule 4 to evaluate motion to dismiss petition for failure to exhaust state remedies); White v. Lewis, 874 F.2d 599, 602-03 (9th Cir. 1989) (using Rule 4 as procedural grounds to review motion to dismiss for state procedural default). ...


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