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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 RONALD W. DEMARTHRA, JR., 12 13 14 15 16 No. 2:16-cv-0790 TLN AC P Petitioner, v. FINDINGS AND RECOMMENDATIONS PEOPLE OF THE STATE OFCALIFORNIA, Respondent. 17 Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus 18 pursuant to 28 U.S.C. § 2254. Respondent moves to dismiss the petition as a “mixed petition.” 19 ECF No. 14. In response, petitioner requests that the unexhausted claim be “stricken” and that 20 this action proceed on the exhausted claims. ECF No. 16. For the reasons outlined below, the 21 undersigned recommends that respondent’s motion to dismiss be granted only as to petitioner’s 22 unexhausted claim (Ground 3). 23 The habeas petition challenges petitioner’s conviction in Sacramento County Superior 24 Court for assault with a deadly weapon and related offenses. ECF No. 1 at 2. The petition sets 25 forth three grounds for relief. In Grounds One and Two, petitioner asserts that the admission of 26 the complaining witness’ preliminary hearing testimony, in lieu of his live testimony at trial, 27 violated petitioner’s Sixth and Fourteenth Amendment rights. See id. at 3-4. Ground One alleges 28 1 1 that the prosecution failed to show that the witness was unavailable at trial, while Ground Two 2 alleges that petitioner did not have the opportunity to cross examine the witness during the 3 preliminary hearing. See id. In Ground Three, petitioner asserts that there was insufficient 4 evidence to support his conviction for assault. Id. at 6. 5 In an order filed May 17, 2016, the court found that the petition indicated that all of the 6 above grounds were raised on direct appeal, and that Grounds One and Two were included in the 7 petition for review filed in the California Supreme Court. See ECF No. 8 at 2. The court found, 8 however, that petitioner did not list Ground Three (insufficiency of the evidence to support the 9 assault conviction) as one of the issues raised in his petition to the California Supreme Court. See 10 id. The court directed petitioner to file a notice with the court indicating whether Ground 3 is 11 exhausted. See id. at 2-4. The court explained to petitioner that if Ground 3 is not exhausted, his 12 options were to (1) to seek a stay of all claims pending exhaustion of Ground Three; (2) to 13 voluntarily dismiss Ground Three and seek a stay of Grounds One and Two only pending 14 exhaustion of Ground Three; or (3) to dismiss Ground Three and proceed on Grounds One and 15 Two without a stay. See id. at 2. 16 Petitioner did not respond to the May 17, 2016 order, and the court directed respondent to 17 file a response to petitioner’s habeas petition. ECF No. 9. On December 2, 2016, respondent 18 filed a motion to dismiss the petition on the ground that it is a “mixed petitioner” because Ground 19 Three is unexhausted. ECF No. 14. Petitioner has now requested that Ground Three be 20 dismissed and that this habeas action proceed on Grounds One and Two. ECF No. 16. 21 The exhaustion of state court remedies is a prerequisite to the granting of a petition for 22 writ of habeas corpus. 28 U.S.C. § 2254(b)(1). If exhaustion is to be waived, it must be waived 23 explicitly by respondent’s counsel. 28 U.S.C. § 2254(b)(3).1 A waiver of exhaustion, thus, may 24 not be implied or inferred. A petitioner satisfies the exhaustion requirement by providing the 25 highest state court with a full and fair opportunity to consider all claims before presenting them to 26 27 1 A petition may be denied on the merits without exhaustion of state court remedies. 28 U.S.C. § 2254(b)(2). 28 2 1 the federal court. Picard v. Connor, 404 U.S. 270, 276 (1971); Middleton v. Cupp, 768 F.2d 2 1083, 1086 (9th Cir. 1985). 3 The documents submitted by respondent demonstrate that Ground Three is in fact 4 unexhausted. Grounds One, Two, and Three were raised on direct appeal in the Third District 5 Court of Appeal. Lodged Doc. 1. Grounds One and Two were included in the petition for review 6 filed in the California Supreme Court.2 Lodged Doc. 3. However, petitioner did not include 7 Ground Three (insufficiency of the evidence to support the assault conviction) as an issue 8 presented to the California Supreme Court for review. See id. Accordingly, Ground Three is 9 unexhausted. 10 The court will recommend that respondent’s motion to dismiss be granted only as to 11 petitioner’s unexhausted claim (Ground Three). This habeas action will proceed only on 12 petitioner’s properly exhausted claims (Grounds One and Two). 13 Accordingly, IT IS HEREBY RECOMMENDED that: 14 1. Respondent’s motion to dismiss (ECF No. 14) be granted in part; 15 2. The following claim and any included sub-claims be dismissed as unexhausted: 16 Ground Three; 17 3. Respondent be directed to file a response to petitioner’s habeas petition addressing the 18 remaining, properly exhausted claims (Grounds 1 and 2) within sixty days from the date of any 19 order adopting these findings and recommendations. See Rule 4, Fed. R. Governing § 2254 20 Cases. An answer shall be accompanied by all transcripts and other documents relevant to the 21 issues presented in the petition. See Rule 5, Fed. R. Governing § 2254 Cases; and 22 23 4. Petitioner be directed to file a reply, if any, within thirty days after service of the answer. 24 These findings and recommendations are submitted to the United States District Judge 25 assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 26 after being served with these findings and recommendations, any party may file written 27 28 2 On February 11, 2015, the California Supreme Court denied the petition for review. Lodged Doc. 2. 3 1 objections with the court, which shall be captioned “Objections to Magistrate Judge’s Findings 2 and Recommendations.” A copy of any objections filed with the court shall also be served on all 3 parties. The parties are advised that failure to file objections within the specified time may waive 4 the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 5 DATED: April 14, 2017 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4

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