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)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ESTEBAN D. HERNANDEZ,

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Petitioner,
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v.
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CATHY ALLISON, Warden,
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Respondent.
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____________________________________)

1:10-cv-01026-AWI-JLT HC
ORDER GRANTING PETITIONER’S
MOTION TO WITHDRAW UNEXHAUSTED
CLAIMS TWO, THREE, AND FOUR
(Doc. 22)

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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

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raising four claims: (1) that Petitioner’s constitutional right to a jury trial was violated when

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consecutive sentences were imposed; (2) that the second-degree murder conviction should be set

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aside because insufficient evidence of implied malice was presented at the preliminary hearing; (3)

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the “mere” fact that Petitioner was driving a motor vehicle while under the influence of alcohol was

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insufficient evidence of gross vehicular manslaughter at the preliminary hearing; and (4) that the

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information must be set aside because each element of the charged offenses was not established at

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the preliminary hearing. (Doc. 1, pp. 5-10; 15).

U .S. D istrict C ourt
E. D . C alifornia

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On July 2, 2010, the Court ordered Respondent to file a response to the petition. (Doc. 5).

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On October 12, 2010, Respondent filed the instant motion to dismiss, contending that Petitioner had

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exhausted only the first claim in state court and therefore either Petitioner should withdraw the

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unexhausted claims or the petition should be dismissed. (Doc. 14). On December 2, 2010, the Court

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issued Findings and Recommendations to grant Respondent’s motion to dismiss. (Doc. 17). On

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January 11, 2011, with no objections having been filed, the District Judge adopted the Findings and

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Recommendations, granted the motion to dismiss, and ordered that Petitioner file a motion

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voluntarily withdrawing the three unexhausted claims within thirty days or risk having the entire

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petition dismissed as a mixed petition. (Doc. 18). On February 7, 2011, Petitioner filed a motion to

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stay proceedings while he exhausts the three unexhausted claims in state court. (Doc. 19). On

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February 28, 2011, Respondent filed an opposition, arguing that any newly exhausted claims would

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be untimely, that Petitioner had not acted with diligence in this case, and that, in any event, the

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unexhausted claims are clearly without merit and raise only issues of state law. (Doc. 20).

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On May 20, 2011, the Court denied Petitioner’s motion for stay, finding that the three

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unexhausted claims, which raised issues of state law only, did not allege cognizable federal habeas

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claims. (Doc. 21). On June 8, 2008, Petitioner filed the instant motion to withdraw claims two,

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three, and four as unexhausted and to proceed on claim one. (Doc. 22).

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Because the three claims that Petitioner seeks to withdraw are in fact unexhausted, and

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because the Court has already determined that the claims would be meritless because they raise only

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issues of state law, the Court will grant Petitioner’s motion.

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ORDER

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Accordingly, IT IS HEREBY ORDERED as follows:

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1.

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Petitioner’s motion with withdraw grounds two, three, and four (Doc. 22), is
GRANTED.

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IT IS SO ORDERED.

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Dated: June 10, 2011
9j7khi

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

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U .S. D istrict C ourt
E. D . C alifornia

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