McCorkle v. Spearman

Filing 22

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 08/31/17 RECOMMENDING that respondents December 6, 2016 motion to dismiss for failure to exhaust 13 be denied. Respondent be directed to file and serve either an answer o r a motion in response to petitioners amended petition 21 within 60 days from the date of this order. Any response shall be accompanied by any and all transcripts or other documents relevant to the determination of the issues presented in the appli cation. Petitioner be directed to file and serve his reply, if any, to respondents answer within 30 days of service of the answer. If the response to petitioners amended petition is a motion, petitioner be directed tofile an opposition or statement of non-opposition within 30 days of service of the motion, and respondent be directed to file his reply, if any, within 14 days thereafter. Motion 13 referred to Judge John A. Mendez. Objections due within 14 days. (Plummer, M) Modified on 8/31/2017 (Plummer, M).

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 10 RANDY KEITH McCORKLE, 11 Petitioner, 12 13 No. 2:16-cv-2368-JAM-EFB P v. FINDINGS AND RECOMMENDATIONS SPEARMAN, 14 Respondent. 15 Petitioner is a state prisoner proceeding without counsel with a petition for writ of habeas 16 17 corpus under 28 U.S.C. § 2254. Respondent moves to dismiss the action as partially 18 unexhausted. ECF No. 13. For the following reasons, the motion must be denied. 19 20 I. Background Petitioner was convicted in California state court of burglary, car theft, and other crimes 21 and sentenced to in excess of 40-years-to-life due, in part, to the application of California’s Three 22 Strikes Law. ECF No. 21 at 2. He appealed his conviction and sentence in the California Court 23 of Appeals and then sought review in the California Supreme Court, which was denied. Docs. 24 Lodged ISO Mot. to Dismiss (hereinafter “Lod. Doc.”) Nos. 2-4. In his petition for review in the 25 California Supreme Court, petitioner argued that (1) there was insufficient evidence to support the 26 conviction of burglary; (2) the trial court erroneously gave a particular jury instruction; and (3) 27 the trial court erroneously refused to strike a prior conviction. Lod. Doc. No. 3. Petitioner did 28 not file any state habeas petitions to challenge the conviction or sentence. 1 1 In the instant petition, petitioner raises the same three claims he raised in state court. ECF 2 No. 1. However, the original petition also included a fourth claim – that the trial court 3 erroneously failed to stay counts three and four under California Penal Code § 654. Id. 4 II. 5 The Motion to Dismiss Respondent argues that the petition should be dismissed because it contains an 6 unexhausted claim. ECF No. 13. A petitioner who is in state custody and wishes to challenge his 7 conviction in federal court through a petition for writ of habeas corpus must first exhaust state 8 judicial remedies. 28 U.S.C. § 2254(b)(1). The exhaustion doctrine is designed to afford comity 9 to state courts by giving them the first opportunity to correct the state’s allegedly unconstitutional 10 conduct. Coleman v. Thompson, 501 U.S. 722, 731 (1991); Rose v. Lundy, 455 U.S. 509, 518 11 (1982); Buffalo v. Sunn, 854 F.2d 1158, 1163 (9th Cir. 1988). 12 A petitioner can satisfy the exhaustion requirement by providing the highest state court 13 with a full and fair opportunity to consider each claim before presenting it to the federal court. 14 Duncan v. Henry, 513 U.S. 364, 365 (1995); Picard v. Connor, 404 U.S. 270, 276 (1971); 15 Johnson v. Zenon, 88 F.3d 828, 829 (9th Cir. 1996). A federal court will find that the highest 16 state court was given a full and fair opportunity to hear a claim if the petitioner has presented the 17 highest state court with the claim’s factual and legal bases. Duncan, 513 U.S. at 365; Keeney v. 18 Tamayo-Reyes, 504 U.S. 1, 8 (1992). 19 Petitioner has not opposed the motion to dismiss. Neither has he contested the assertion 20 that he did not exhaust his claim regarding a staying of counts under California Penal Code § 654. 21 Instead, he has filed an amended petition that does not include that claim. ECF No. 21. As 22 petitioner has removed the unexhausted claim from the petition and respondent does not contend 23 that the remaining claims were not exhausted, the motion to dismiss for failure to exhaust should 24 be denied and respondent should be directed to respond to the amended petition. 25 III. 26 Conclusion and Recommendation Petitioner has filed an amended petition that contains only his exhausted claims. 27 ///// 28 ///// 2 1 Accordingly, it is hereby RECOMMENDED that: 2 1. Respondent’s December 6, 2016 motion to dismiss for failure to exhaust (ECF No. 13) 3 4 be denied; 2. Respondent be directed to file and serve either an answer or a motion in response to 5 petitioner’s amended petition (ECF No. 21) within 60 days from the date of this order. 6 Any response shall be accompanied by any and all transcripts or other documents 7 relevant to the determination of the issues presented in the application; 8 9 3. Petitioner be directed to file and serve his reply, if any, to respondent’s answer within 30 days of service of the answer; and 10 4. If the response to petitioner’s amended petition is a motion, petitioner be directed to 11 file an opposition or statement of non-opposition within 30 days of service of the 12 motion, and respondent be directed to file his reply, if any, within 14 days thereafter. 13 These findings and recommendations are submitted to the United States District Judge 14 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 15 after being served with these findings and recommendations, any party may file written 16 objections with the court and serve a copy on all parties. Such a document should be captioned 17 “Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections 18 within the specified time may waive the right to appeal the District Court’s order. Turner v. 19 Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 20 DATED: August 31, 2017. 21 22 23 24 25 26 27 28 3

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