Opinion
Case No. 06CV0018 IEG (WMc).
November 7, 2006
On January 3, 2006, Amazing Stewart ("petitioner"), a state inmate proceeding pro se and in forma pauperis, filed a federal Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 ("petition"). Petitioner, in his petition, claims that: 1) the state trial court's failure to give a jury instruction "on a combination of mental illness and intoxication" defense constitutes a constitutional violation; 2) the state trial court's "failure to resolve the `drug discount' dispute during closing argument" constitutes a constitutional violation; 3) the prosecution's "drug discount" argument is prejudicial prosecutorial misconduct; 4) the "trial court's exclusion of intoxication and mental illness" evidence for his assault and domestic violence charges is a constitutional violation; 5) the trial court's jury instruction regarding the petitioner's propensity to commit domestic violence is constitutional error; and 6) the petitioner's right to a fair trial was compromised by an incident of improper transportation protocol. (Petition at 9-31.)
Petitioner's real name is Nathaniel Amazing Stewart.
The case was referred to United States Magistrate Judge William McCurine Jr. pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule HC.2(a). On April 25, 2006, respondent filed a Motion to Dismiss the Petition for failure to exhaust all state court remedies. (Doc. No. 8.) On September 25, 2006, the petitioner filed a letter with Magistrate Judge McCurine requesting that the all unexhausted claims be dismissed and the court move forward with any remaining exhausted claims.
On August 7, 2006, Magistrate Judge McCurine issued a Report and Recommendation ("Report") recommending that the court: 1) dismiss the respondent's motion to dismiss as moot; 2) dismiss claims three and six of the petition as unexhausted; 3) and set a briefing schedule for the petitioner's remaining claims. The court, having reviewed de novo the Magistrate Judge's Report, and there being no objections filed to the Report, adopts the Magistrate Judge's recommendations in full.
The court hereby DENIES the respondent's Motion to Dismiss the Petition for Writ of Habeas Corpus. The court hereby DISMISSES claims three and six of petitioner's federal habeas petition.
It is further ordered that the respondent file an Answer to the Petition for Writ of Habeas Corpus with the court and serve all parties no later than December 8, 2006.
Any Traverse to the Answer shall be filed with the court and served on all parties no later than January 5, 2007.
IT IS SO ORDERED.