Singh v. Robertson

          ORDER GRANTING PETITIONER'S MOTION TO AMEND PETITION; DENYING RESPONDENT'S MOTION TO DISMISS AS MOOT; DIRECTIONS TO CLERK

          YVONNE GONZALEZ ROGERS UNITED STATES DISTRICT JUDGE.

         I. INTRODUCTION

         Petitioner, a state prisoner, has filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his state conviction and raising eleven claims. Respondent has filed a motion to dismiss five of Petitioner's eleven claims as unexhausted. Dkt. 9. In response, Petitioner has filed a motion to amend his petition and delete the five unexhausted claims. Dkt. 16. Petitioner has also filed his amended petition containing the remaining exhausted claims. Dkt. 19.

         II. BACKGROUND

         A jury found Petitioner guilty of two counts of first degree murder with special circumstances of lying in wait and multiple murder, and it also found true multiple personal use of a firearm enhancement allegations as to both counts. Resp't Ex. 1 at 1. The trial court sentenced Petitioner to life without the possibility of parole consecutive to 50 years to life. Id.

         Petitioner appealed and filed a state habeas petition in the state appellate court. Resp't Exs. 1 & 2. On October 2, 2017, the state appellate court denied the habeas petition. Resp't Ex. 3. The state appellate court decided the direct appeal on the same day in an unpublished decision upholding the murder convictions and special circumstance enhancements, and reversing and remanding the matter to the trial court for resentencing to strike firearm enhancements under California Penal Code § 12022.53(d) and (e) and impose the previously stayed firearm enhancements under California Penal Code § 12022.53(c). Resp't Ex. 1.

         On October 31, 2017, the state appellate court issued an order modifying its opinion with no change in the judgment and denying rehearing. Resp't Ex. 4.

         Petitioner filed petitions for review of the appeal and the denial of the habeas petition in the California Supreme Court. Resp't Exs. 5 & 6. On January 17, 2018, the state supreme court denied review of the denial of the habeas petition. Resp't Ex. 7. On the same day, the state supreme court granted review and remanded to the state appellate court with directions to vacate its decision and further consider the cause in light of California Senate Bill 620. Resp't Ex. 8.

         On February 26, 2018, the state appellate court again affirmed the convictions and special circumstance enhancements but reversed and remanded for to the trial court for resentencing to strike the California Penal Code § 12022.53(d) and (e) enhancements and to consider exercising its discretion to strike the previously stayed California Penal Code § 12022.53(c) enhancements.^[1]Resp't Ex. 9.

         On June 19, 2018, the trial court struck the California Penal Code § 12022.53(d) and (e) enhancements, imposed the previously stayed California Penal Code § 12022.53(c) enhancements and resentenced Petitioner to life without parole consecutive to 40 years. Resp't Ex. 10.

         On December 19, 2018, Petitioner filed a timely petition in this Court alleging eleven claims. Dkt. 1.

         On February 26, 2019, this Court issued an order to show cause. Dkt. 6.

         III. DISCUSSION

         A. ...