Opinion
NO. EDCV 12-2022-SVW (AS)
06-10-2015
DAMEON LAMONT POWELL, Petitioner, v. RALPH M. DIAZ, Warden, Respondent.
ORDER ACCEPTING FINDINGS, CONCLUSIONS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE
Pursuant to 28 U.S.C. section 636, the Court has reviewed the Petition, all of the records herein and the attached Report and Recommendation of United States Magistrate Judge. After having made a de novo determination of the portions of the Report and Recommendation to which Objections were directed, the Court concurs with and accepts the findings and conclusions of the Magistrate Judge. However, the Court addresses certain arguments raised in the Objections below.
Petitioner contends that he is also entitled to habeas relief on his conviction, in count 11, for actively participating in a criminal street gang based on the July 27, 2004 shooting. Because this claim was not raised in the petition, and is unexhausted, it is not properly before the Court. "A federal court may not grant habeas relief to a state prisoner unless the prisoner has first exhausted his state court remedies by fully and fairly presenting each claim to the highest state court." Libberton v. Ryan, 583 F.3d 1147, 1164 (9th Cir. 2009) (citation and internal quotation marks omitted); 28 U.S.C. § 2254(b)(1)(A).
Petitioner's remaining objections to the Report and Recommendation are a reiteration of the arguments made in the Petition and have been addressed in the Report and Recommendation. Accordingly, the Court concurs with and accepts the findings and conclusions of the Magistrate Judge.
IT IS ORDERED that Judgment be entered denying and dismissing the Petition with prejudice with respect to Grounds One, Two(a), Three and Four, and granting the Petition with respect to Ground Two(b) and discharging Petitioner from all consequences of his conviction on Count Three for violating California Penal Code Section 186.22(a) and vacating the portion of his sentence based on the conviction on Count Three. Within one hundred and twenty (120) days, or such further time as reasonably allowed under state law, the Superior Court for the County of Riverside shall resentence Petitioner in conformity with this Order and consistent with the law discussed in the Report and Recommendation.
IT IS FURTHER ORDERED that the Clerk serve copies of this Order, the Magistrate Judge's Report and Recommendation and the Judgment herein on Petitioner, counsel for Petitioner and counsel for Respondent.
LET JUDGMENT BE ENTERED ACCORDINGLY.
DATED: June 10, 2015.
/s/_________
STEPHEN V. WILSON
UNITED STATES DISTRICT JUDGE