Demartha v. People of the State of Calfornia

Filing 17

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Allison Claire on 4/14/2017 RECOMMENDING that respondent's 14 motion to dismiss be granted in part; the Ground Three claim and any included sub-claims be dismissed as unexhausted; respo ndent be directed to file a response to petitioner's habeas petition addresing the remaining, properly exhaused claims (Grounds 1 and 2) within 60 days from the date of any order adopting these findings and recommendations; and petitioner be directed to file a reply, if any, within 30 days after service of the answer. Referred to Judge Troy L. Nunley; Objections to F&R due within 14 days. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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RONALD W. DEMARTHRA, JR.,

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No. 2:16-cv-0790 TLN AC P

Petitioner,
v.

FINDINGS AND RECOMMENDATIONS

PEOPLE OF THE STATE
OFCALIFORNIA,
Respondent.

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Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus

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pursuant to 28 U.S.C. § 2254. Respondent moves to dismiss the petition as a “mixed petition.”

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ECF No. 14. In response, petitioner requests that the unexhausted claim be “stricken” and that

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this action proceed on the exhausted claims. ECF No. 16. For the reasons outlined below, the

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undersigned recommends that respondent’s motion to dismiss be granted only as to petitioner’s

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unexhausted claim (Ground 3).

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The habeas petition challenges petitioner’s conviction in Sacramento County Superior

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Court for assault with a deadly weapon and related offenses. ECF No. 1 at 2. The petition sets

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forth three grounds for relief. In Grounds One and Two, petitioner asserts that the admission of

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the complaining witness’ preliminary hearing testimony, in lieu of his live testimony at trial,

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violated petitioner’s Sixth and Fourteenth Amendment rights. See id. at 3-4. Ground One alleges

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that the prosecution failed to show that the witness was unavailable at trial, while Ground Two

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alleges that petitioner did not have the opportunity to cross examine the witness during the

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preliminary hearing. See id. In Ground Three, petitioner asserts that there was insufficient

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evidence to support his conviction for assault. Id. at 6.

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In an order filed May 17, 2016, the court found that the petition indicated that all of the

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above grounds were raised on direct appeal, and that Grounds One and Two were included in the

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petition for review filed in the California Supreme Court. See ECF No. 8 at 2. The court found,

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however, that petitioner did not list Ground Three (insufficiency of the evidence to support the

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assault conviction) as one of the issues raised in his petition to the California Supreme Court. See

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id. The court directed petitioner to file a notice with the court indicating whether Ground 3 is

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exhausted. See id. at 2-4. The court explained to petitioner that if Ground 3 is not exhausted, his

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options were to (1) to seek a stay of all claims pending exhaustion of Ground Three; (2) to

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voluntarily dismiss Ground Three and seek a stay of Grounds One and Two only pending

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exhaustion of Ground Three; or (3) to dismiss Ground Three and proceed on Grounds One and

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Two without a stay. See id. at 2.

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Petitioner did not respond to the May 17, 2016 order, and the court directed respondent to

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file a response to petitioner’s habeas petition. ECF No. 9. On December 2, 2016, respondent

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filed a motion to dismiss the petition on the ground that it is a “mixed petitioner” because Ground

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Three is unexhausted. ECF No. 14. Petitioner has now requested that Ground Three be

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dismissed and that this habeas action proceed on Grounds One and Two. ECF No. 16.

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The exhaustion of state court remedies is a prerequisite to the granting of a petition for

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writ of habeas corpus. 28 U.S.C. § 2254(b)(1). If exhaustion is to be waived, it must be waived

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explicitly by respondent’s counsel. 28 U.S.C. § 2254(b)(3).1 A waiver of exhaustion, thus, may

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not be implied or inferred. A petitioner satisfies the exhaustion requirement by providing the

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highest state court with a full and fair opportunity to consider all claims before presenting them to

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A petition may be denied on the merits without exhaustion of state court remedies. 28 U.S.C. §
2254(b)(2).

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the federal court. Picard v. Connor, 404 U.S. 270, 276 (1971); Middleton v. Cupp, 768 F.2d

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1083, 1086 (9th Cir. 1985).

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The documents submitted by respondent demonstrate that Ground Three is in fact

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unexhausted. Grounds One, Two, and Three were raised on direct appeal in the Third District

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Court of Appeal. Lodged Doc. 1. Grounds One and Two were included in the petition for review

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filed in the California Supreme Court.2 Lodged Doc. 3. However, petitioner did not include

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Ground Three (insufficiency of the evidence to support the assault conviction) as an issue

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presented to the California Supreme Court for review. See id. Accordingly, Ground Three is

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unexhausted.

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The court will recommend that respondent’s motion to dismiss be granted only as to

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petitioner’s unexhausted claim (Ground Three). This habeas action will proceed only on

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petitioner’s properly exhausted claims (Grounds One and Two).

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Accordingly, IT IS HEREBY RECOMMENDED that:

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1. Respondent’s motion to dismiss (ECF No. 14) be granted in part;

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2. The following claim and any included sub-claims be dismissed as unexhausted:

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Ground Three;

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3. Respondent be directed to file a response to petitioner’s habeas petition addressing the

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remaining, properly exhausted claims (Grounds 1 and 2) within sixty days from the date of any

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order adopting these findings and recommendations. See Rule 4, Fed. R. Governing § 2254

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Cases. An answer shall be accompanied by all transcripts and other documents relevant to the

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issues presented in the petition. See Rule 5, Fed. R. Governing § 2254 Cases; and

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4. Petitioner be directed to file a reply, if any, within thirty days after service of the
answer.

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These findings and recommendations are submitted to the United States District Judge

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assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days

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after being served with these findings and recommendations, any party may file written

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On February 11, 2015, the California Supreme Court denied the petition for review. Lodged
Doc. 2.
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objections with the court, which shall be captioned “Objections to Magistrate Judge’s Findings

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and Recommendations.” A copy of any objections filed with the court shall also be served on all

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parties. The parties are advised that failure to file objections within the specified time may waive

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the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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DATED: April 14, 2017

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