Khaoone v. Sherman et al

Filing 13

ORDER GRANTING MOTION TO DISMISS, STRIKING UNEXHAUSTED CLAIMS, AND ISSUING ORDER TO SHOW CAUSE AS TO EXHAUSTED CLAIMS by Judge Charles R. Breyer: Granting 8 Motion to Dismiss. The deputy clerk hereby certifies that on 11/7/2017 a copy of this order was served by sending it via first-class mail to the address of each non-CM/ECF user listed on the Notice of Electronic Filing. (lsS, COURT STAFF) (Filed on 11/7/2017)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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PRESTON P. KHAOONE, AM2008,
Petitioner,

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United States District Court
Northern District of California

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v.
STUART SHERMAN, Warden,
Respondent.

Case No. 17-cv-03884-CRB (PR)
ORDER GRANTING MOTION TO
DISMISS, STRIKING UNEXHAUSTED
CLAIMS, AND ISSUING ORDER TO
SHOW CAUSE AS TO EXHAUSTED
CLAIMS
(ECF No. 8)

Petitioner, a state prisoner incarcerated at the California Substance Abuse Treatment

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Facility and State Prison, Corcoran, filed a pro se petition for a writ of habeas corpus under 28

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U.S.C. § 2254 challenging a conviction from Sonoma County Superior Court.

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Per order filed on September 12, 2017, the court (Cousins, M.J.) found that the claims in

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the petition – (1) the trial court’s exclusion of favorable witness testimony under the marital

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communications privilege violated petitioner’s federal constitutional rights; (2) the trial court erred

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in denying petitioner’s motion for a mistrial; (3) the trial court erred by failing to instruct the jury

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regarding California Penal Code § 1111.5; (4) the convictions violated due process based on the

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opinion in People v. Chiu, 59 Cal. 4th 155, 167 (2014) (holding that aider and abettor “cannot be

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convicted of first degree premeditated murder under the natural and probable consequences

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doctrine”); and (5) the trial court erred in instructing the jury on CALCRIM No. 416.4 – appeared

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cognizable under § 2254 and ordered respondent to show cause why a writ of habeas corpus

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should not be granted. Respondent instead moves to dismiss the petition for failure to exhaust

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state judicial remedies as to all claims because petitioner only presented claims (1), (4) and (5) to

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the Supreme Court of California.

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The court agrees that claims (2) and (3) are unexhausted, and so does petitioner. He also

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requests that the court “delete the unexhausted claims – claim[] two and claim[] three” – so he can

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proceed with his exhausted ones – claims (1), (4) and (5). ECF No. 12 at 1.

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Accord
dingly, respondent’s motion to dismi ss (ECF No. 8) is GRAN
.
NTED and p
petitioner’s

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une
exhausted cl
laims (2) and (3) are STR
d
RICKEN. G
Good cause a
appearing therefor, respo
ondent is

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ord
dered to file with the cou and serve on petitione within 60 days of the issuance of this order,
urt
e
er,
0
e
f

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an answer conf
forming in all respects to Rule 5 of t Rules Go
o
the
overning Sec
ction 2254 C
Cases,

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sho
owing cause why a writ of habeas co
o
orpus should not be gran on petiti
d
nted
ioner’s exhau
usted claims
s

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(1), (4) and (5). Responden shall file with the ans
nt
w
swer and serv on petitio
ve
oner a copy o all
of

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por
rtions of the state trial re
ecord that ha been tran
ave
nscribed prev
viously and that are relev to a
vant

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det
termination of the issues presented by the petitio
o
s
b
on.

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United States District Court
Northern District of California

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If petiti
ioner wishes to respond to the answe he shall d so by filin a traverse with the
s
t
er,
do
ng
e
cou and servi it on resp
urt
ing
pondent with 30 days o his receipt of the answ
hin
of
wer.
IT IS SO ORDER
S
RED.
Da
ated: Novem
mber 7, 2017
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__________
___________
__________
________
CH
HARLES R. BREYER
Un
nited States D
District Judg
ge

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