Hernandez v. Allison

Filing 23

ORDER Granting Petitioner's 22 Motion to Withdraw Unexhausted Claims Two, Three, and Four signed by Magistrate Judge Jennifer L. Thurston on 06/10/2011. (Flores, E)

Download PDF
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 ESTEBAN D. HERNANDEZ, ) ) Petitioner, ) ) ) v. ) ) ) CATHY ALLISON, Warden, ) ) Respondent. ) ____________________________________) 1:10-cv-01026-AWI-JLT HC ORDER GRANTING PETITIONER’S MOTION TO WITHDRAW UNEXHAUSTED CLAIMS TWO, THREE, AND FOUR (Doc. 22) 17 18 19 20 21 Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. PROCEDURAL HISTORY On June 7, 2010, Petitioner filed the instant petition for writ of habeas corpus in this Court 22 raising four claims: (1) that Petitioner’s constitutional right to a jury trial was violated when 23 consecutive sentences were imposed; (2) that the second-degree murder conviction should be set 24 aside because insufficient evidence of implied malice was presented at the preliminary hearing; (3) 25 the “mere” fact that Petitioner was driving a motor vehicle while under the influence of alcohol was 26 insufficient evidence of gross vehicular manslaughter at the preliminary hearing; and (4) that the 27 information must be set aside because each element of the charged offenses was not established at 28 the preliminary hearing. (Doc. 1, pp. 5-10; 15). U .S. D istrict C ourt E. D . C alifornia 1 1 On July 2, 2010, the Court ordered Respondent to file a response to the petition. (Doc. 5). 2 On October 12, 2010, Respondent filed the instant motion to dismiss, contending that Petitioner had 3 exhausted only the first claim in state court and therefore either Petitioner should withdraw the 4 unexhausted claims or the petition should be dismissed. (Doc. 14). On December 2, 2010, the Court 5 issued Findings and Recommendations to grant Respondent’s motion to dismiss. (Doc. 17). On 6 January 11, 2011, with no objections having been filed, the District Judge adopted the Findings and 7 Recommendations, granted the motion to dismiss, and ordered that Petitioner file a motion 8 voluntarily withdrawing the three unexhausted claims within thirty days or risk having the entire 9 petition dismissed as a mixed petition. (Doc. 18). On February 7, 2011, Petitioner filed a motion to 10 stay proceedings while he exhausts the three unexhausted claims in state court. (Doc. 19). On 11 February 28, 2011, Respondent filed an opposition, arguing that any newly exhausted claims would 12 be untimely, that Petitioner had not acted with diligence in this case, and that, in any event, the 13 unexhausted claims are clearly without merit and raise only issues of state law. (Doc. 20). 14 On May 20, 2011, the Court denied Petitioner’s motion for stay, finding that the three 15 unexhausted claims, which raised issues of state law only, did not allege cognizable federal habeas 16 claims. (Doc. 21). On June 8, 2008, Petitioner filed the instant motion to withdraw claims two, 17 three, and four as unexhausted and to proceed on claim one. (Doc. 22). 18 Because the three claims that Petitioner seeks to withdraw are in fact unexhausted, and 19 because the Court has already determined that the claims would be meritless because they raise only 20 issues of state law, the Court will grant Petitioner’s motion. 21 ORDER 22 Accordingly, IT IS HEREBY ORDERED as follows: 23 1. 24 Petitioner’s motion with withdraw grounds two, three, and four (Doc. 22), is GRANTED. 25 26 IT IS SO ORDERED. 27 Dated: June 10, 2011 9j7khi /s/ Jennifer L. Thurston UNITED STATES MAGISTRATE JUDGE 28 U .S. D istrict C ourt E. D . C alifornia 2

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?