Morrison v. Lizarraga

          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, ...