United States District Court, S.D. California
REPORT AND RECOMMENDATION RE: MOTION TO DISMISS
PETITION FOR WRIT OF HABEAS CORPUS [ECF No. 12]
Hon.
Jill L. Burkhardt United States Magistrate Judge
This
Report and Recommendation is submitted to the Honorable
Michael M. Anello, United States District Judge, pursuant to
28 U.S.C. § 636(b)(1) and Local Civil Rule 72.1(d) of
the United States District Court for the Southern District of
California.
On
August 8, 2018, Petitioner Ryan Michael Morrison
(“Petitioner”), proceeding pro se, filed
a Petition for Writ of Habeas Corpus (the
“Petition”) before this Court pursuant to 28
U.S.C. § 2254. (ECF No. 1.) On August 13, 2018, the
Court advised Petitioner that his Claim Two appeared to be
unexhausted and gave him options on how to proceed. (ECF No.
2.) Petitioner chose one of the options and, on October 14,
2018, constructively filed a motion for stay and abeyance
pursuant to Rhines v. Weber, 544 U.S. 269 (2005).
(ECF No. 4.) Upon consideration of the motion, the
undersigned issued a report recommending that the motion be
denied without prejudice. (ECF No. 5.) No. objections were
filed. On April 26, 2019, the Honorable Michael M. Anello,
United States District Judge, adopted the report and
recommendation and denied Petitioner's motion for stay
and abeyance without prejudice. (ECF No. 7.)
Now
before the Court is a motion to dismiss filed by Respondent
Joe A. Lizarraga (“Respondent”), Warden of Mule
Creek State Prison. (ECF No. 12.) Respondent moves to dismiss
the Petition on the grounds that Petitioner has failed to
exhaust his state court remedies with respect to all claims
in the Petition. (Id.) Petitioner filed an
opposition in which he renews his request for a stay and
abeyance under Rhines. (ECF No. 17.)
The
Court has carefully considered Respondent's motion,
Petitioner's opposition, the Notice of Lodgment (ECF No.
13), as well as the record as a whole. Based thereon, and for
the reasons set forth below, the Court
RECOMMENDS that Respondent's motion to
dismiss be DENIED, and Petitioner's
renewed request for a Rhines stay be
GRANTED.
I.
BACKGROUND
On
December 18, 2015, Petitioner was sentenced to twenty-five
years to life, plus five years, following conviction in San
Diego County Superior Court for first degree burglary of an
inhabited dwelling, possession of methamphetamine, and
possession of heroin. (ECF No. 1 at 1-2.) Petitioner appealed
his conviction to the California Court of Appeal.
(Id. at 2.) In his appeal, Petitioner raised four
claims, including two raised in this Petition: (1) the trial
court erred in not dismissing one of his prior strike
convictions; and (2) Petitioner's due process rights were
violated when he received a sentence after trial which was
significantly harsher than his pre-trial offer. (Id.
at 2, 6-13.) On April 27, 2017, the California Court of
Appeal affirmed the judgment. (Id. at 2.)
Petitioner
then filed a petition for review in the California Supreme
Court seeking review of the same issues that he raised before
the Court of Appeal. (Id.) The California Supreme
Court affirmed Petitioner's judgment of guilt on August
9, 2017. (Id.) Petitioner did not file a writ of
certiorari in the United States Supreme Court. (Id.
at 3.)
On
August 8, 2018, Petitioner filed the present Petition. (ECF
No. 1.) In his Petition, Petitioner claims his constitutional
rights were violated in the following ways: (1) the trial
court erred in not dismissing one of his prior strike
convictions (Claim One); (2) Petitioner's trial counsel
was ineffective for failing to provide an adequate expert
witness (Claim Two); and (3) Petitioner's due process
rights were violated when he received a sentence after trial
which was significantly harsher than his pre-trial offer
(Claim Three). (Id. at 6-13.)
In his
Petition, Petitioner alleges exhaustion as to Claims One and
Three. (See Id. at 2, 6, 12.) However, Petitioner
does not allege exhaustion as to Claim Two, his ineffective
assistance of trial counsel claim. (See Id. at 9.)
Therefore, on August 13, 2018, the Court issued a Notice
Regarding Possible Dismissal of Petition for Failure to
Exhaust State Court Remedies (the “Notice”),
informing Petitioner of several options with respect to his
mixed petition. (ECF No. 2.) The Notice informed Petitioner
that his Petition was subject to dismissal because it
contained unexhausted claims. (Id.) On October 14,
2018, Petitioner elected to file a motion for stay and
abeyance under Rhines. (See Id. at 4; ECF
No. 4.) Respondent had until November 15, 2018 to file a
response to Petitioner's motion and did not do so.
(See ECF No. 2 at 4.)
On
March 25, 2019, the undersigned issued a Report and
Recommendation regarding Petitioner's motion for stay and
abeyance. (ECF No. 5.) After analyzing Petitioner's
motion, the Court determined that Petitioner had not
demonstrated good cause for a stay under Rhines.
(Id. at 9.) The Court relied on the fact that,
despite being on notice, the Court had before it no evidence
that Petitioner had filed any state habeas petition with
respect to Claim Two. (See Id. at 5-9.) The Court
gave Petitioner until April 19, 2019 to file written
objections. (Id. at 11.) Petitioner did not file any
objections.[1] (See ECF No. 13-11.) On April 26,
2019, Judge Anello adopted the Report and Recommendation and
denied Petitioner's motion for stay and abeyance without
prejudice. (ECF No. 7.)
Now
before the Court is Respondent's motion to dismiss the
Petition on the grounds that Petitioner has failed to exhaust
his state court remedies with respect to all claims in the
Petition. (ECF No. 12.) Petitioner filed an opposition in
which he requests reconsideration of the Court's order
denying his motion for stay and abeyance pursuant to
Rhines. (ECF No. 17.)
II.
LEGAL STANDARD
Habeas
petitioners who wish to challenge either their state court
conviction, or the length of their confinement, must first
exhaust state judicial remedies. 28 U.S.C. § 2254(b),
(c); see also Granberry v. Greer, 481 U.S. 129,
133-34 (1987); Peterson v. Lampert, 319 F.3d 1153,
1155 (9th Cir. 2003). To exhaust state judicial remedies, a
California state prisoner must present the California Supreme
Court with a fair opportunity to rule on the merits of every
issue raised in his or her federal habeas petition. 28 U.S.C.
§ 2254(b), (c); Granberry, 481 U.S. at 133-34;
Gatlin v. Madding, 189 F.3d 882, 888 (9th Cir.
1999). Federal courts cannot consider petitions that contain
both exhausted and unexhausted claims, often referred to as
“mixed” petitions. See Rose v. Lundy,
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