Opinion
2:21-cv-00035-KJM-JDP (HC)
09-03-2021
ROBERT LEE SIMMS, Petitioner, v. JEFF LYNCH, Respondent.[1]
ORDER THAT THE CLERK OF COURT NAME WARDEN JEFF LYNCH AS RESPONDENT IN THIS ACTION FINDINGS AND RECOMMENDATIONS THAT RESPONDENT'S MOTION TO DISMISS BE GRANTED AND THIS ACTION PROCEED ON PETITIONER'S SINGLE EXHAUSTED CLAIM ECF NO. 12
JEREMY D. PETERSON, UNITED STATES MAGISTRATE JUDGE.
Petitioner, seeking habeas relief under 28 U.S.C. § 2254, raises four claims. ECF No. 6. He argues that: (1) the trial court's admission of DNA evidence violated his due process rights; (2) he was arrested unlawfully; (3) the trial court suppressed exonerative DNA evidence; and (4) the prosecutor committed misconduct by bringing charges against an individual known to be innocent. Id. at 4-5. Respondent has filed a motion to dismiss arguing that only the first of the four claims has been exhausted. ECF No. 12 at 3. Petitioner has not offered any meaningful opposition to respondent's motion. His lone argument is that it was his appellate counsel, not him, who decided which claims would be raised on direct appeal and, thus, exhausted. ECF No. 15 at 2. This reasoning does not save his unexhausted claims. Petitioner could have, as respondent points out in his reply, raised the unexhausted claims in a separate state habeas petition. ECF No. 16 at 2. Petitioner states that he does not oppose the deletion of his unexhausted claims “if the court cannot allow them to go forward.” Id.
It is ORDERED that the Clerk of Court shall add Jeff Lynch as respondent to this action.
Further, it is RECOMMENDED that respondent's motion to dismiss, ECF No. 12, be granted and only petitioner's first claim-that the trial court erred when it admitted adverse DNA evidence-be permitted to proceed. His other three claims should be dismissed as unexhausted.
These findings and recommendations are submitted to the U.S. District Court Judge presiding over this case under 28 U.S.C. § 636(b)(1)(B) and Rule 304 of the Local Rules of Practice for the United States District Court, Eastern District of California. Within fourteen days of service of the findings and recommendations, petitioner may file written objections to the findings and recommendations with the court and serve a copy on all parties. That document must be captioned “Objections to Magistrate Judge's Findings and Recommendations.” The District Judge will then review the findings and recommendations under 28 U.S.C. § 636(b)(1)(C).
IT IS SO ORDERED.