(HC) Mendoza v. Covello

• Court: District Court, E.D. California
• Decided: January 4, 2021
• Docket: 1:19-cv-01521
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JOSE GUADALUPE MENDOZA, No. 1:19-cv-01521-NONE-JLT (HC) 12 Petitioner, 13 v. ORDER ADOPTING IN PART FINDINGS AND RECOMMENDATIONS AND 14 PATRICK COVELLO, Acting Warden of GRANTING RESPONDENT’S MOTION TO Mule Creek State Prison, DISMISS IN PART 15 Respondent. (Doc. Nos. 15, 16.) 16

17 18 INTRODUCTION 19 Petitioner Jose Guadalupe Mendoza is a state prisoner proceeding pro se and in forma 20 pauperis with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. On March 17, 21 2020, the assigned magistrate judge issued findings and recommendation recommending that 22 respondent’s motion to dismiss the pending petition be granted due to petitioner’s failure to first 23 exhaust his claims by presenting them to the state’s highest court.1 (Doc. No. 16.) The findings 24 and recommendations were served upon all parties and contained notice that any objections 25 thereto were to be filed within twenty-one (21) days from the date of service of that order. (Id.) 26 1 Respondent included in the pending motion to dismiss a request to substitute Patrick Covello, 27 the Acting Warden of Mule Creek State Prison, as respondent in this matter. (Doc. No. 15 at 1 n.1.) The undersigned grants respondent’s request for substitution. See Fed. R. Civ. P. 25(d); 28 Rules Governing Section 2254 Cases in the United States District Courts, Rule 2(a). 1 On March 25, 2020, petitioner filed objections to the findings and recommendations. (Doc. No. 2 17.) 3 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), the court has conducted a 4 de novo review of the case. The court has carefully reviewed the entire file, including petitioner’s 5 objections. While the undersigned agrees with the conclusion reached in the findings and 6 recommendations that petitioner’s Equal Protection claim is unexhausted, the court believes it is 7 also appropriate to grant petitioner an opportunity to withdraw his unexhausted claims or to move 8 for stay and abeyance of this federal habeas proceeding while exhausting his unexhausted claims 9 in state court. 10 BACKGROUND AND PROCEDURAL HISTORY 11 On January 11, 2016, a Kern County Superior Court jury convicted petitioner of: 12 kidnapping to commit robbery in violation of California Penal Code2 § 209(b) (Count 1); second- 13 degree burglary in violation of Penal Code § 460(b) (Count 2); second-degree robbery of Ramiro 14 Arvizu Olvera in violation of Penal Code § 212.5(c) (Count 4); first-degree robbery of Eulisses 15 Mercado in violation of Penal Code § 212.5(b) (Count 5); and attempted first-degree robbery of 16 Ramiro Arvizu Olvera in violation of Penal Code §§ 664, 212.5(b) (Count 6).3 (Doc. No. 14-1 at 17 8–21.) The jury also found that petitioner used a firearm during the commission of the offenses 18 charged in Counts 1, 2, 4, 5, and 6 within the meaning of Penal Code § 12022.5(a). (Id. at 9, 12, 19 17, 20.) The jury additionally found that petitioner personally used a firearm during the 20 commission of the offenses charged in Counts 1, 4, and 6 within the meaning of Penal Code § 21 12022.53(b). (Id. at 10, 15, 21.) 22 Petitioner was sentenced to life with the possibility of parole on Count 1 (kidnapping to 23 commit robbery), plus an additional ten years for the firearm enhancement under § 12022.53(b). 24 (Doc. No. 14-11 at 2.) On Count 4 (second-degree robbery of Ramiro Arvizu Olvera), petitioner 25 was sentenced to a consecutive term of three years, plus ten years for the firearm enhancement 26 2 All future references to the Penal Code in this order are to the California Penal Code. 27 3 The California Court of Appeal noted that this conviction should have been reflected as being 28 for violating Penal Code § 212.5(c). (Doc. No. 14-11 at 1 n.3.) 1 under § 12022.53(b). (Id.) On Count 6 (attempted first-degree robbery of Ramiro Arvizu 2 Olvera), petitioner was sentenced to a consecutive term of eight months imprisonment, plus an 3 additional three years and four months for the firearm enhancement under § 12022.53(b).4 (Id.) 4 Petitioner appealed from his judgment of conviction and sentence to the California Court 5 of Appeal for the Fifth Appellate District. (Doc. No. 14-5.) Appellate counsel for petitioner 6 raised the following four issues on appeal: (1) no substantial evidence of asportation to support 7 petitioner’s conviction for kidnapping to commit robbery in violation of petitioner’s right to Due 8 Process under the Fourteenth Amendment (Doc. No. 1 at 40–54, 75–78); (2) Penal Code § 654 9 precluded petitioner being sentenced on both Count 4 (second-degree robbery of Ramiro Arvizu 10 Olvera) and Count 6 (attempted first-degree robbery of Ramiro Arvizu Olvera) (Doc. No. 1 at 55– 11 63, 79–83); (3) the trial court erred by denying petitioner’s Pitchess5 discovery motion (Doc. No. 12 1 at 64–66); and (4) in a supplemental brief, petitioner argued for remand so that the trial court 13 could determine whether to exercise its discretion under the then–recently created California 14 Senate Bill No. 620 to strike petitioner’s firearm enhancements. (Doc. No. 14-8 at 5–16; Doc. 15 No. 14-9 at 5–9.) 16 The California Court of Appeal rejected petitioner’s first three arguments, concluding that 17 there was sufficient evidence of asportation to support his conviction for kidnapping to commit 18 robbery; the trial court did not commit reversible error in ruling that Penal Code § 654 did not 19 apply to Counts 4 and 6; and the trial court did not abuse its discretion in denying petitioner’s 20 Pitchess discovery motion. (Doc. No. 14-11 at 3–6.) The California Court of Appeal did, 21 however, remand the matter to allow the trial court to consider whether to strike the firearm 22 ///// 23 ///// 24 4 The trial court stayed the sentences imposed on Counts 2 and 5, with their respective 25 enhancements, pursuant to Penal Code § 654, which prohibits punishment for two crimes arising from a single indivisible course of conduct. (Doc. No. 14-11 at 2.) 26

27 5 Under the holding in Pitchess v. Superior Court, 11 Cal. 3d 531, 535 (1974), a defendant in California may seek discovery of a law enforcement officer’s personnel records that are relevant 28 to the defendant’s ability to defend against a criminal charge. 1 enhancements under § 12022.5 and § 12022.53.6 (Id. at 6.) 2 On November 23, 2018, petitioner sought review by the California Supreme Court. (Doc. 3 No. 1 at 87.) In his petition for review he maintained his first two claims presented on appeal: 4 (1) no substantial evidence of asportation to support the conviction for kidnapping to commit 5 robbery in violation of his right to Due Process under the Fourteenth Amendment (Doc. No. 1 at 6 97–106); and (2) that Penal Code § 654 precluded the sentences imposed for his conviction on 7 both Counts 4 and 6 (id. at 107–13). Petitioner did not include in his petition for review 8 arguments related to the denial of his Pitchess discovery motion and the request for remand and 9 resentencing on the firearm enhancements.7 (See generally Doc. No. 1 at 87–113.) 10 On January 2, 2019, the California Supreme Court summarily denied the petition. (Doc. 11 No. 1 at 127.) On October 16, 2019, petitioner filed the instant petition for a writ of habeas 12 corpus under 28 U.S.C. § 2254. (Doc. No. 1.) On March 17, 2020, the assigned magistrate judge 13 issued findings and recommendations, recommending that respondent’s motion to dismiss be 14 granted due to petitioner’s failure to first exhaust the claims set forth in the pending petition by 15 first presenting them to the state high court. (Doc. No. 16.) 16 In his objections to the pending findings and recommendation petitioner seeks first to 17 “retract the assertion of a federal constitutional claim” and maintain his original claims. (Doc. 18 No. 17 at 5.) Alternatively, if the court dismisses his pending § 2254 petition, petitioner asks this 19 court to dismiss it without prejudice so that he may exhaust his claims in state court. (Id.) In 20 recommending the dismissal of the pending federal habeas petition, the assigned magistrate judge 21 determined that it asserted only one claim: an Equal Protection claim, which was unexhausted. 22 (See Doc. No. 16 at 4; Doc. No. 15 at 7–8.) Petitioner does not appear to dispute that his Equal 23 ///// 24 6 On remand, the trial court struck petitioner’s firearm enhancements under Penal Code § 25 12022.53(b) as to Counts 1 and 4, vacating the ten-year enhancement and imposing a sentence of life with the possibility of parole after seven years, plus a determinate term of seven years. (Doc. 26 No. 14-15 at 2; Doc. No. 14-16.) 27 7 The court notes petitioner’s firearm enhancements were struck on July 15, 2019—eight months 28 after he filed his petition for review with the California Supreme Court. (Doc. No. 14-15 at 2.) 1 Protection claim asserted in the petition before this court is unexhausted. (See generally Doc. No. 2 17.) 3 LEGAL STANDARD 4 Title 28 U.S.C. § 2254(d) sets forth the following standards for granting federal habeas 5 corpus relief: 6 An application for a writ of habeas corpus on behalf of a person in 7 custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State 8 court proceedings unless the adjudication of the claim -- 9 (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as 10 determined by the Supreme Court of the United States; or 11 (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the 12 State court proceeding. 13 28 U.S.C. § 2254(d). For purposes of applying § 2254(d)(1), “clearly established federal law” 14 consists of holdings of the United States Supreme Court at the time of the last reasoned state court 15 decision. Thompson v. Runnels, 705 F.3d 1089, 1096 (9th Cir. 2013) (citing Greene v. Fisher, 16 565 U.S. 34 (2011)); Stanley v. Cullen, 633 F.3d 852, 859 (9th Cir. 2011) (citing Williams v. 17 Taylor, 529 U.S. 362, 412 (2000)). 18 DISCUSSION 19 A. Exhaustion 20 “The exhaustion requirement of § 2254(b) ensures that the state courts have the 21 opportunity fully to consider federal-law challenges to a state custodial judgment before the lower 22 federal courts may entertain a collateral attack upon that judgment.” Duncan v. Walker, 533 U.S. 23 167, 178–79 (2001). 24 To satisfy the exhaustion requirement, a state prisoner must “fairly present” his federal 25 claim to the state courts by giving the state courts a fair opportunity to consider and correct 26 violations of the prisoner’s federal rights. See Duncan v. Henry, 513 U.S. 364, 365 (1995); 27 Peterson v. Lampert, 319 F.3d 1153, 1155–56 (9th Cir. 2003) (en banc). A California prisoner 28 seeking relief with respect to a conviction is required to “fairly present” his federal claims to the 1 California Supreme Court. See Baldwin v. Reese, 541 U.S. 27, 29 (2004) (a state prisoner must 2 fairly present his claim to a state supreme court having the power of discretionary review); 3 Keating v. Hood, 133 F.3d 1240, 1242 (9th Cir. 1998). To fairly present a claim to the California 4 Supreme Court, the petitioner must describe not only the operative facts but also the federal legal 5 theory on which the claim is based. See Davis v. Silva, 511 F.3d 1005, 1009 (9th Cir. 2008). The 6 Ninth Circuit has held that when a claim is properly presented to the highest court of the state, 7 and the state court has discretion to review the claim, but chooses not to review it, the exhaustion 8 requirement is satisfied. Russell v. Rolfs, 893 F.2d 1033, 1035–36 (9th Cir. 1990). 9 1. Equal Protection 10 In his pending § 2254 petition, petitioner claims the state courts “applied the laws . . . in 11 an arbitrary and discriminatory way, that made them unconstitutional as applied to the petitioner, 12 and that he is entitled to relief under the Fourteenth Amendment (Due Process and Equal 13 Protection).” (Doc. No. 1 at 20.) Petitioner further asserts the “purpose of the Equal Protection 14 clause of the Fourteenth Amendment is to secure every person within the states jurisdiction 15 against intentional and arbitrary discrimination, whether occasioned by express terms of a statute 16 or by its improper execution through duly constituted agents.” (Id. at 21.) As noted above, 17 petitioner does not dispute that his Equal Protection claim presented to this federal habeas court is 18 unexhausted. (See Doc. No. 17 at 2 (“It was my understanding that all levels of exhaustion have 19 been adequately addressed being that I had appealed these matters, less the federal constitutional 20 claim, in all levels of the state levels.”).) The undersigned has reviewed petitioner’s state court 21 filings and agrees with the conclusion reached in the pending findings and recommendations that 22 petitioner has not exhausted his Equal Protection claim in the state courts. 23 2. Due Process 24 In his pro se petition before this court, however, petitioner also seeks “relief for violations 25 of his Fourteenth Amendment Due Process rights under Equal Protection, in the way that the 26 Kern County Superior Court and the Fifth District Court, used an interpretation of State law 27 against petitioner, that evaded the consideration of Constitutional issues.” (Doc. No. 1 at 19.) To 28 the extent this is a separate and distinct claim based upon an alleged violation of petitioner’s right 1 to due process, the pending findings and recommendations do not address it. (See generally Doc. 2 No. 16.) Petitioner objects to the pending findings and recommendations on the grounds that he 3 exhausted his claim in state court regarding “insufficient evidence to support the count 1 4 kidnapping conviction.” (Doc. No. 17 at 2–3.) Construing the pro se petitioner’s pleadings 5 liberally, the undersigned finds that petitioner has asserted a cognizable Due Process/sufficiency 6 of the evidence claim in his § 2254 petition.8 Moreover, the undersigned cannot conclude that 7 petitioner failed to exhaust that claim in state court. 8 Before both the California Court of Appeal and the California Supreme Court, petitioner 9 argued there was no substantial evidence of asportation sufficient to support his conviction for 10 kidnapping to commit robbery, thus violating his right to due process as guaranteed by the 11 Fourteenth Amendment. (Doc. No. 1 at 40–54 (Court of Appeal filing); id. 97–106 (Supreme 12 Court filing).) The California Court of Appeal rejected petitioner’s argument in a reasoned 13 decision. (Doc. No. 14-11.) The California Supreme Court summarily denied petitioner’s 14 petition for review in which he challenged the sufficiency of the evidence introduced at his trial to 15 support his conviction for kidnapping to commit robbery in violation of his right to Due Process 16 under the Fourteenth Amendment. (Doc. No. 1 at 127.) Because the state’s highest court denied 17 the petition for review, petitioner’s Due Process claim is exhausted. See Russell, 893 F.2d at 18 1035–36; see also Jackson v. Virginia, 443 U.S. 307, 317–18, 321 (1979) (“Under the Winship 19 decision [‘which established proof beyond a reasonable doubt as an essential of Fourteenth 20 Amendment due process’], it is clear that a state prisoner who alleges that the evidence in support 21 of his state conviction cannot be fairly characterized as sufficient to have led a rational trier of 22 fact to find guilt beyond a reasonable doubt has stated a federal constitutional claim. Thus, 23 assuming that state remedies have been exhausted . . . it follows that such a claim is cognizable in 24 a federal habeas corpus proceeding.”). 25 ///// 26 ///// 27 8 Accordingly, respondents’ alternative motion for a more definite statement will be denied as 28 moot. (Doc. No. 15 at 1.) 1 a. Mixed Petition 2 For the reasons discussed above, the undersigned finds that the pending § 2254 petition is 3 therefore a “mixed” petition, meaning that it is made up of both exhausted and unexhausted 4 claims. In cases involving mixed petitions, and as long as adequately supported, courts should 5 allow petitioners leave to amend or to seek a stay and abeyance of the federal habeas action while 6 the petitioner exhausts any unexhausted claims in state court. See Dixon v. Baker, 847 F.3d 714, 7 at 719 (9th Cir. 2017) (“we have repeatedly warned the district courts that they ‘may not dismiss 8 a mixed petition without giving the petitioner the opportunity to delete the unexhausted claims . . . 9 . This warning is compelled by the fact that, unless either a stay of the habeas proceedings or 10 leave to delete the unexhausted claims is granted, a federal habeas petitioner will lose the 11 opportunity to have his properly exhausted federal claims heard in federal court simply because 12 they were submitted in a mixed petition.”). 13 In his objections, petitioner somewhat confusingly states that he seeks leave to amend to 14 “retract the assertion of a federal constitutional claim and to maintain [his] original claims 15 previously stated.” (Doc. No. 17 at 5.) Alternatively, if his motion to amend is denied, petitioner 16 requests dismissal without prejudice so that he may exhaust his claims in state court. (Id.) 17 Petitioner does not specify which federal constitutional claim he seeks to retract. (See generally 18 id.) Petitioner may elect to withdraw his unexhausted Equal Protection claim and proceed solely 19 on his exhausted due process claim in this habeas action or, as explained below, he may file a 20 motion seeking a stay and abeyance of this action so that he may exhaust his unexhausted equal 21 protection claim in state court. If petitioner proceeds with his due process claim only, any Equal 22 Protection claim may later be barred from being brought before this federal habeas court by the 23 applicable statute of limitations. 24 i. Stay and Abeyance Procedures 25 If petitioner elects not to withdraw his unexhausted Equal Protection claim, he may seek a 26 stay and abeyance of his federal habeas action. Two procedures are available to federal habeas 27 petitioners who wish to proceed with exhausted and unexhausted claims for relief. The “Kelly 28 procedure,” outlined in Kelly v. Small, 315 F.3d 1063 (9th Cir. 2003), overruled on other grounds 1 by Robbins v. Carey, 481 F.3d 1143 (9th Cir. 2007), has been described by the Ninth Circuit to 2 involve the following three-step process: 3 (1) a petitioner amends his petition to delete any unexhausted claims, (2) the court stays and holds in abeyance the amended, fully 4 exhausted petition, allowing petitioner the opportunity to proceed to state court to exhaust the deleted claims; and (3) the petitioner later 5 amends his petition and re-attaches the newly-exhausted claims to the original petition. 6 7 King v. Ryan, 564 F.3d 1133, 1135 (9th Cir. 2009). A petitioner who proceeds under Kelly will 8 be able to amend his petition with newly exhausted claims if they are timely under the statute of 9 limitations governing the filing of federal habeas petitions. If a petitioner’s newly-exhausted 10 claims are untimely, he will be able to amend his petition to include them only if they share a 11 “common core of operative facts” with the claims in the original federal petition. See King, 564 12 F.3d at 1141. In this regard, the Kelly procedure, unlike the alternative procedure discussed 13 below, is a riskier one for a habeas petitioner because it does not protect a petitioner’s 14 unexhausted claims from becoming time-barred during a stay. See id. at 1140–41; see also 15 Duncan v. Walker, 533 U.S. 167, 172–75 (2001) (unlike the filing of a state habeas petition, the 16 filing of a federal habeas petition does not toll the statute of limitations). 17 As the Ninth Circuit explained in King, the United States Supreme Court has authorized a 18 second procedure for pursuing both exhausted and unexhausted claims in Rhines v. Weber, 544 19 U.S. 269, 277 (2005). Under the Rhines procedure, the petitioner may proceed on a “mixed 20 petition,” i.e., one containing both exhausted and unexhausted claims, and his unexhausted claims 21 remain pending in federal court while he returns to state court to exhaust them. See King, 564 22 F.3d at 1140; Jackson v. Roe, 425 F.3d 654, 660 (9th Cir. 2005) (“Rhines concluded that a district 23 court has discretion to stay a mixed petition to allow a petitioner time to return to state court to 24 present unexhausted claims.”). 25 A petitioner who proceeds under Rhines can, in many instances, avoid a statute of 26 limitations problem with respect to his unexhausted claims. See King, 564 F.3d at 1140. 27 However, the requirements are more stringent for the granting of a stay under Rhines, as 28 compared to obtaining a stay under Kelly. The Supreme Court has cautioned that a “stay and 1 abeyance [under the Rhines procedure] should be available only in limited circumstances,” and 2 “district courts should place reasonable time limits on a petitioner’s trip to state court and back.” 3 Rhines, 544 U.S. at 277–78. District courts should not grant a stay under Rhines if the petitioner 4 has engaged in abusive litigation tactics or intentional delay, or if the unexhausted claims are 5 plainly meritless. Id. at 278. Further, under Rhines, “‘stay-and-abeyance is only appropriate when 6 the district court determines there was good cause for the petitioner’s failure to exhaust his claims 7 first in state court.’” King, 564 F.3d at 1139 (quoting Rhines, 544 U.S. at 277–78). 8 The decisions in both Kelly and Rhines “are directed at solving the same problem— 9 namely, the interplay between [the Antiterrorism and Effective Death Penalty Act’s] one-year 10 statute of limitations and the total exhaustion requirement first articulated in Rose v. Lundy, 455 11 U.S. 509 (1982).” King, 564 F.3d at 1136. 12 Accordingly, plaintiff will be directed to file a notice with the court within thirty (30) days 13 of the date of this order indicating how he wishes to proceed: (a) dismiss his unexhausted Equal 14 Protection claim and proceed only on his due process claim in this federal habeas proceeding, 15 understanding that any Equal Protection claim may later be barred by the applicable statute of 16 limitations; (b) seek a stay and abeyance under the Kelly procedure, deleting his unexhausted 17 Equal Protection claim in his § 2254 petition, staying his § 2254 petition containing only his due 18 process claim while petitioner pursues his unexhausted Equal Protection claim in state court, later 19 amending his § 2254 petition to re-attach the newly exhausted claim to the original § 2254 20 petition, and recognizing the potential statute of limitations issue that may arise; or (c) seek a stay 21 and abeyance under the Rhines procedure, whereby petitioner’s unexhausted claims will remain 22 pending before this federal court while he returns to state court to exhaust his Equal Protection 23 claim, recognizing that he will be required to demonstrate good cause for his failure to previously 24 exhaust the unexhausted Equal Protection claim in state court. 25 3. California Penal Code § 654 26 As noted, petitioner also has indicated in his objections that he seeks leave to amend his 27 petition to “maintain [his] original claims.” (Doc. No. 17 at 5.) It is unclear whether plaintiff 28 intends to re-assert his claim that under Penal Code § 654, the state trial court committed 1 reversible error in sentencing him for two crimes (Counts 1 and 4) arising from a single 2 indivisible course of conduct. (Doc. No. 1 at 55–63, 79–83.) Although interpreted narrowly such 3 a claim would appear to be one challenging the application of state sentencing law which is not 4 reviewable in this federal habeas action, because the claim may arguably touch upon a potential 5 federal constitutional claim—a double jeopardy violation—the court will also address whether 6 plaintiff has exhausted any such claim. 7 An application in federal court for a writ of habeas corpus by a person in custody under a 8 judgment of a state court can be granted only for violations of the Constitution or laws of the 9 United States. 28 U.S.C. § 2254(a). A federal writ is not available for alleged error in the 10 interpretation or application of state law. See Wilson v. Corcoran, 562 U.S. 1, 5 (2010) (citing 11 Estelle v. McGuire, 502 U.S. 62, 67 (1991)). “[I]t is not the province of a federal habeas court to 12 reexamine state-court determinations on state-law questions.” Estelle, 502 U.S. at 67–68. 13 Penal Code § 654 is entitled “Offenses punishable in different ways by different 14 provisions; double jeopardy; denial of probation,” and provides in relevant part: 15 An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides 16 for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision. An 17 acquittal or conviction and sentence under any one bars a prosecution for the same act or omission under any other. 18 19 Penal Code § 654(a). 20 However, the court is unaware of any caselaw supporting the notion that simply because a 21 state statute may implicate a federal constitutional claim—like the prohibition against double 22 jeopardy—that challenging a conviction based upon the asserted violation of that state law alone 23 is sufficient for purposes of satisfying the exhaustion requirement. Rather, a federal claim must 24 have been explicitly presented to the state high court for the claim to be deemed exhausted. See 25 Lyons v. Crawford, 232 F.3d 666, 668–69 (9th Cir. 2000) (“petitioner must make the federal basis 26 of the claim explicit either by citing federal law or the decisions of federal courts, even if the 27 federal basis is ‘self-evident’ . . . or the underlying claim would be decided under state law on the 28 same considerations that would control resolution of the claim on federal grounds”), amended on 1 other grounds in 247 F.3d 904 (9th Cir. 2001). Here, despite having argued his claim based upon 2 Penal Code § 654 before both the California Court of Appeal and the California Supreme Court, 3 petitioner has not as to this issue “fairly present[ed]” a federal constitutional claim to the 4 California Supreme Court, including the federal legal theory on which the claim is based. See 5 Baldwin, 541 U.S. at 29; Davis, 511 F.3d at 1009. As a result, the undersigned cannot conclude 6 that any potential Double Jeopardy claim has been exhausted by petitioner in state court. Further, 7 because a federal writ is not available for alleged error in the interpretation or application of state 8 law, petitioner may not raise a claim based solely on an alleged violation of Penal Code § 654 in 9 any amended federal habeas petition he may elect to file in this action. See Wilson, 562 U.S. at 5. 10 4. Pitchess Motion 11 In affirming petitioner’s judgment of conviction, the California Court of Appeal held that 12 the trial court did not abuse its discretion in denying petitioner’s Pitchess motion seeking 13 disclosure of an officer’s personnel files. (Doc. No. 14-11 at 6.) Petitioner did not raise this 14 claim in his petition for review with the California Supreme Court. (See generally Doc. No. 1 at 15 87–114.) Therefore, any potential federal habeas claim, if any, regarding the denial of 16 petitioner’s Pitchess motion is clearly unexhausted. 17 5. Firearm Sentencing Enhancement 18 The California Court of Appeal remanded petitioner’s case so that the trial court could 19 consider whether to strike the firearm enhancements under Penal Code § 12022.5 and § 12022.53. 20 (Doc. No. 14-11 at 6.) Petitioner did not raise any constitutional claim regarding the imposition 21 of the firearm enhancements before the California Supreme Court. (See generally Doc. No. 1 at 22 87–114.) Because neither the California Court of Appeal nor California Supreme Court had a fair 23 opportunity to consider any constitutional claim in this regard, any conceivable constitutional 24 claim challenging the application of the firearm sentencing enhancements in petitioner’s case is 25 also unexhausted. 26 ///// 27 ///// 28 ///// 1 CONCLUSION 2 For the reasons set forth above, 3 1. The court adopts the findings and recommendations (Doc. No. 16) in part and 4 finds that petitioner has asserted a cognizable due process claim in his pending 5 federal habeas petition. 6 2. Within thirty (30) days from the date of this Order, petitioner shall inform the 7 court regarding how he now wishes to proceed in this action with his mixed 8 petition: 9 a. Withdraw his unexhausted Equal Protection claim; 10 b. Seek a stay and abeyance under the Kelly procedure, as described above; or 11 c. Seek a stay and abeyance under the Rhines procedure, as described above. 12 3. Respondent’s alternative motion for a more definite statement (Doc. No. 15) is 13 denied as moot. 14 4. Patrick Covello, the Acting Warden of Mule Creek State Prison, is substituted as 15 respondent in this matter (Doc. No. 15 at 1 n.1). 16 | IT IS SO ORDERED. si □ Dated: _ December 30, 2020 Dal A □□□ yt 18 UNITED STATES DISTRICT JUDGE 19 20 21 22 23 24 25 26 27 28 13