Opinion
No. CIV S-09-0296 GGH P.
November 17, 2009
ORDER
Introduction
Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges his 2004 convictions for transportation of heroin (Cal. Health Saf. Code § 11352(a)), transportation of methamphetamine (Cal. Health Saf. Code § 11379(a)); possession of heroin for sale (Cal. Health Saf. Code § 11351), bringing heroin and methamphetamine into prison (Cal. Health Saf. Code § 4573), and possession of heroin and methamphetamine in prison (Cal. Health Saf. Code § 4573.6). Petitioner was also found to have suffered numerous prior serious felony convictions. He is serving a sentence of 25 years to life for each conviction, with all but one stayed.
On February 13, 2009, petitioner filed a notice of consent to the jurisdiction of the undersigned. On June 29, 2009, respondent filed a notice of consent to the jurisdiction of the undersigned.
For the following reasons, respondent's June 29, 2009, motion to dismiss is reinstated.
Background
On June 29, 2009, respondent filed a motion to dismiss on grounds that not all of the claims raised in the petition were exhausted. On August 6, 2009, petitioner filed a motion to hold this action in abeyance while he exhausted state court remedies.
On August 20, 2009, the undersigned vacated respondent's motion to dismiss and denied petitioner's motion to stay because it failed to address the factors in Rhines v. Weber, 544 U.S. 269, 125 S.Ct. 1528 (2005). The court granted petitioner twenty days to file an amended motion addressing the Rhines factors and an amended motion containing all of his claims, exhausted and unexhausted. In the alternative, the undersigned ordered that petitioner could proceed with a stay request as outlined in King v. Ryan, 564 F.3d 1133 (9th Cir. 2009). It was further ordered that if petitioner did not file a motion to stay, respondent's motion to dismiss would be reinstated.
On September 8, 2009, petitioner filed a request for extension of time to respond to the August 20, 2009, order. On September 16, 2009, the undersigned granted petitioner thirty days to comply with this order. Thirty days passed and petitioner has not filed any pleading. Accordingly, respondent's motion to dismiss is reinstated.
Discussion
The original petition, on which this action is proceeding, raises the following claims: 1) insufficient evidence to support petitioner's conviction for bringing drugs into the prison; 2) trial court erred in permitting admission of prejudicial evidence; 3) trial court erred in admitting late discovery; 4) trial counsel was ineffective for failing to object to inadmissible evidence; 5) appellate counsel was ineffective for failing to argue that trial counsel was ineffective for failing to call an expert witness, etc.; 6) ineffective assistance of trial and appellate counsel for failing to argue insufficient evidence; 7) appellate counsel was ineffective for failing to argue that trial counsel was ineffective for presenting a faulty strategy; 8) insufficient evidence to support petitioner's convictions for possession of heroin and methamphetamine.
In the July 29, 2009, respondent argues that not all of the claims raised in the petition are exhausted. In particular, respondent argues that claims 1 and 3-8 are not exhausted.
The exhaustion of state court remedies is a prerequisite to the granting of a petition for writ of habeas corpus. 28 U.S.C. § 2254(b)(1). If exhaustion is to be waived, it must be waived explicitly by respondent's counsel. 28 U.S.C. § 2254(b)(3). A waiver of exhaustion, thus, may not be implied or inferred. A petitioner satisfies the exhaustion requirement by providing the highest state court with a full and fair opportunity to consider all claims before presenting them to the federal court. Picard v. Connor, 404 U.S. 270, 276, 92 S. Ct. 509, 512 (1971); Middleton v. Cupp, 768 F.2d 1083, 1086 (9th Cir.), cert. denied, 478 U.S. 1021 (1986).
Petitioner filed a direct appeal of his conviction in state court but no state habeas corpus petitions. In the petition for review filed in the California Supreme Court petitioner raised two claims. Respondent's Lodged Document 4. First, petitioner argued that there was insufficient evidence to support his conviction. Id. Second, petitioner argued that the trial court allowed evidence of prejudicial evidence after petitioner testified which it had previously held excluded as a sanction for failure to provide discovery. Id.
Claim 2 of the instant petition, which respondent concedes is exhausted, is the same as the second claim raised in the petition for review. It appears that petitioner is basing claim 1 of the instant petition, alleging insufficient evidence, on the same grounds as claim 1 of the petition for review. For that reason, the court finds that claim 1 is exhausted.
In a situation where some claims are exhausted, and some not, nothing precludes the court from proceeding on the exhausted claims if the unexhausted claims are dismissed or stricken, thereby leaving a exhausted claims only petition. Accordingly, the motion to dismiss claim 1 is denied but granted as to claims 3-8.
Because the unexhausted claims are dismissed, respondent is ordered to file a response to exhausted claims 1 and 2.
Accordingly, IT IS HEREBY ORDERED that:
1. Respondent's June 29, 2009, motion to dismiss (no. 11) is reinstated;
2. The motion to dismiss (no. 11) is denied as to claim 1 and granted as to claims 3-8;
3. Within twenty-eight days of the date of this order, respondent shall file a response to claims 1 and 2; petitioner may file a reply to the response within twenty-eight days thereafter.