United States District Court, E.D. California
FINDINGS AND RECOMMENDATION TO GRANT RESPONDENT'S
MOTION TO DISMISS ORDER DIRECTING CLERK OF COURT TO AMEND
CAPTION (ECF NO. 13)
is a state prisoner proceeding pro se with a petition for
writ of habeas corpus pursuant to 28 U.S.C. § 2254.
was convicted by a jury in the Kern County Superior Court of
two counts of second-degree murder (counts 1 and 2), gross
vehicular manslaughter while intoxicated (count 3), and
misdemeanor driving without a valid license (count 6).
Petitioner was sentenced to an imprisonment term of: fifteen
years to life on count 1; a concurrent fifteen years to life
on count 2; and ten years plus two years on count 3, which
was stayed. (LDs 1, 2). On April 13, 2018, the California
Court of Appeal, Fifth Appellate District remanded the matter
for the trial court to correct a clerical error in the
abstract of judgment and in all other respects affirmed the
judgment. (LD 2). On May 15, 2018, Petitioner filed a
petition for review in the California Supreme Court, which
denied the petition on June 20, 2018. (LDs 3, 4).
filed a state habeas petition and a petition for resentencing
in the Kern County Superior Court. Petitioner also filed a
notice of appeal in the California Court of Appeal of the
denial of his resentencing petition. (ECF No. 13 at 2
n.2). Petitioner did not file any state habeas
petitions challenging his convictions and sentence in the
California Supreme Court. (Id. at 2).
7, 2019, Petitioner filed the instant federal petition for
writ of habeas corpus. (ECF No. 1). In the petition,
Petitioner asserts the following claims for relief: (1)
ineffective assistance of counsel for failing to excuse a
juror who was a family member of the victim; (2) denial of a
fair trial because a family member of the victim was on the
jury; (3) ineffective assistance of counsel for failing to
excuse a juror who knew the victim and the mother who was
also in the car at the time of the accident; and (4) denial
of a fair trial because a member of the jury knew the victim
and the mother. (ECF No. 1 at 3-6).
August 21, 2019, Respondent filed a motion to dismiss the
petition as unexhausted. (ECF No. 13). To date, Petitioner
has not filed any opposition or statement of non-opposition
to the motion to dismiss, and the time for doing so has
petitioner in state custody who is proceeding with a petition
for writ of habeas corpus must exhaust state judicial
remedies. 28 U.S.C. § 2254(b)(1). The exhaustion
doctrine is based on comity to the state court and gives the
state court the initial opportunity to correct the
state's alleged constitutional deprivations. Coleman
v. Thompson, 501 U.S. 722, 731 (1991); Rose v.
Lundy, 455 U.S. 509, 518 (1982). A petitioner can
satisfy the exhaustion requirement by providing the highest
state court with a full and fair opportunity to consider each
claim before presenting it to the federal court.
O'Sullivan v. Boerckel, 526 U.S. 838, 845
(1999); Duncan v. Henry, 513 U.S. 364, 365 (1995);
Picard v. Connor, 404 U.S. 270, 276 (1971).
has lodged state court records that demonstrate Petitioner
only presented two instructional error claims in his petition
for review filed in the California Supreme Court. (LD 3).
Given that Petitioner has not sought relief in the California
Supreme Court on any of the claims raised in the instant
petition, this Court cannot proceed to the merits of said
claims. 28 U.S.C. § 2254(b)(1).
RECOMMENDATION & ORDER
on the foregoing, the undersigned HEREBY RECOMMENDS that:
1. Respondent's motion to dismiss (ECF No. 13) be
2. The petition for writ of habeas corpus be DISMISSED
WITHOUT PREJUDICE for failure to exhaust state judicial
the Clerk of Court is DIRECTED to amend the caption to