Opinion
No. CIV S-06-1141-MCE-CMK-P.
August 17, 2006
FINDINGS AND RECOMMENDATIONS
Petitioner, a prisoner proceeding with counsel, brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Pending before the court is respondent's motion to dismiss (Doc. 8), filed on June 26, 2006. On July 27, 2006, petitioner filed an opposition to respondent's motion (Doc. 10). Petitioner filed a supplemental opposition (Doc. 11) on August 2, 2006, and exhibits in support thereof (Doc. 12) on August 3, 2006.
Respondent argues in his motion that the claims raised in the instant petition are not exhausted. Specifically, respondent asserts that, while the state court has ruled on petitioner's two state habeas corpus petitions, the claims raised in those petitions are not the same as the claims raised in this case. Respondent concludes that, because petitioner has never raised the exact same claims raised herein to the state court, the claims are unexhausted.
At the time respondent filed his motion, this argument would have had merit. However, as shown in petitioner's responses to respondent's motion, circumstances have since changed. Petitioner filed a third habeas corpus petition in the California Supreme Court on July 27, 2006. That petition raised the identical claims as raised in this case. Further, the record reflects that the California Supreme Court denied the third petition on August 2, 2006. Therefore, it is clear that petitioner's federal claims are exhausted. See 28 U.S.C. § 2244(d)(1)(A).
Based on the foregoing, the undersigned recommends that:
1. Respondent's motion to dismiss be denied; and
2. Respondent be directed to file an answer to petitioner's petition.
These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within ten days after being served with these findings and recommendations, any party may file written objections with the court. The document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Failure to file objections within the specified time may waive the right to appeal the District Court's order.Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).