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Craig v. D'agostini

United States District Court, E.D. California

October 30, 2019

NORMAN JOHN CRAIG, Petitioner,
v.
JOHN D'AGOSTINI, Respondent.

          FINDINGS & RECOMMENDATIONS

          KENDALL J. NEWMAN UNITED STATES MAGISTRATE JUDGE

         I. Introduction

         Petitioner is a county jail inmate, proceeding without counsel. Respondent moves to dismiss the petition on the grounds that petitioner fails to state a valid claim for federal habeas relief, and because petitioner failed to exhaust his state court remedies as to all of his claims. Petitioner filed an opposition; respondent did not file a reply. On September 13, 2019, petitioner was granted thirty days to file a motion for stay, but petitioner did not respond.

         As set forth below, because the petition is a mixed petition raising both exhausted and unexhausted claims, petitioner's unexhausted claims should be dismissed without prejudice, and his Fourth Amendment claim should be denied.

         II. Background

         On March 28, 2018, petitioner was found guilty of resisting a police officer in violation of California Penal Code Section 148, in El Dorado County Superior Court case no. P17CRM1258. (ECF No. 34-1.) On July 30, 2018, petitioner was sentenced to 180 days in jail and three years of probation. (Id.) Petitioner did not file an appeal.

         Petitioner filed a petition for writ of habeas corpus in the California Court of Appeal, Third Appellate District on August 13, 2018.[1] (ECF No. 34-2.) The petition was denied on August 16, 2018, citing In re Steele, 32 Cal.4th 682, 692 (2004); and In re Hillery, 202 Cal.App. 2d 293 (1962). (ECF No. 34-3.)

         Petitioner filed a petition for writ of habeas corpus in the California Supreme Court on December 3, 2018.[2] (ECF No. 34-4.) The California Supreme Court denied the petition on January 2, 2019, without comment. (ECF No. 34-5.)

         On January 8, 2019, petitioner filed a petition for writ of habeas corpus in the El Dorado County Superior Court. (ECF No. 34-6.) The petition was denied on January 22, 2019:

Habeas relief is not available when petitioner has other plain, speedy, and adequate remedies available. In re Clark (1993) 5 Cal.4th 750, 764, fn.3. A habeas petition cannot be used as a substitute for preliminary hearing or trial.
The Petition is Summarily Denied. [¶] IT IS SO ORDERED.

(ECF No. 34-7.)

         On February 14, 2019, petitioner filed a petition for writ of habeas corpus in the El Dorado County Superior Court, No. PC20190093. (ECF No. 34-8.) As of the filing of respondent's motion, this state court petition remained pending. (ECF No. 34-9.)

         On September 24, 2018, petitioner filed his original petition for writ of habeas corpus in this action. (ECF No. 1.) On February 4, 2019, petitioner filed an amended petition for writ of habeas corpus. (ECF No. 15.)

         III. Ame ...


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