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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1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 6 PRESTON P. KHAOONE, AM2008, Petitioner, 7 8 9 10 United States District Court Northern District of California 11 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 12 Facility and State Prison, Corcoran, filed a pro se petition for a writ of habeas corpus under 28 13 U.S.C. § 2254 challenging a conviction from Sonoma County Superior Court. 14 Per order filed on September 12, 2017, the court (Cousins, M.J.) found that the claims in 15 the petition – (1) the trial court’s exclusion of favorable witness testimony under the marital 16 communications privilege violated petitioner’s federal constitutional rights; (2) the trial court erred 17 in denying petitioner’s motion for a mistrial; (3) the trial court erred by failing to instruct the jury 18 regarding California Penal Code § 1111.5; (4) the convictions violated due process based on the 19 opinion in People v. Chiu, 59 Cal. 4th 155, 167 (2014) (holding that aider and abettor “cannot be 20 convicted of first degree premeditated murder under the natural and probable consequences 21 doctrine”); and (5) the trial court erred in instructing the jury on CALCRIM No. 416.4 – appeared 22 cognizable under § 2254 and ordered respondent to show cause why a writ of habeas corpus 23 should not be granted. Respondent instead moves to dismiss the petition for failure to exhaust 24 state judicial remedies as to all claims because petitioner only presented claims (1), (4) and (5) to 25 the Supreme Court of California. 26 The court agrees that claims (2) and (3) are unexhausted, and so does petitioner. He also 27 requests that the court “delete the unexhausted claims – claim[] two and claim[] three” – so he can 28 proceed with his exhausted ones – claims (1), (4) and (5). ECF No. 12 at 1. 1 Accord dingly, respondent’s motion to dismi ss (ECF No. 8) is GRAN . NTED and p petitioner’s 2 une exhausted cl laims (2) and (3) are STR d RICKEN. G Good cause a appearing therefor, respo ondent is 3 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 4 an answer conf forming in all respects to Rule 5 of t Rules Go o the overning Sec ction 2254 C Cases, 5 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 6 (1), (4) and (5). Responden shall file with the ans nt w swer and serv on petitio ve oner a copy o all of 7 por rtions of the state trial re ecord that ha been tran ave nscribed prev viously and that are relev to a vant 8 det termination of the issues presented by the petitio o s b on. 9 10 United States District Court Northern District of California 11 12 13 14 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 ___ __________ ___________ __________ ________ CH HARLES R. BREYER Un nited States D District Judg ge 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2

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