(HC) Xiong v. Asuncion

Opinion

JOHN XIONG, No. 2:18-cv-0373 TLN KJN P Petitioner, v. ORDER Respondent. Petitioner is a state prisoner, proceeding without counsel, with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner raises one claim: his appellate counsel was ineffective for filing a Wende1 brief on appeal. Pending before the court is petitioner’s motion to stay this action in order to exhaust additional claims. (ECF No. 17.) On August 12, 2019, petitioner filed a notice stating that he has completed exhaustion of his additional claims. (ECF No. 23.) Good cause appearing, petitioner’s motion to stay is vacated. Attached to petitioner’s August 12, 2019 notice is a copy of his petition filed in the California Supreme Court. The petition filed in the California Supreme Court raises the following claims: 1) counsel failed to investigate and object to sentencing error (id. at 17-19);

1 People v. Wende, 25 Cal.3d 436 (1979). 2) sentencing error Gd. at 20-21); 3) imposition of sentence pursuant to California Penal Code § 186.22 violates due process (id. at 22); 4) trial judge erred in imposing sentence pursuant to California Penal Code § 12022.53 (id. at 23-25); 5) failure to apply Senate Bill 620 retroactively violates the Equal Protection clause (id. at 25-27); and 6) trial court violated petitioner’s right to due process by failing to grant petitioner credits California Penal Code § 4019 (id. at 27-30). The undersigned construes petitioner’s August 12, 2019 pleading as a motion to amend the petition to raise the claims raised in the petition filed in the California Supreme Court. Accordingly, IT IS HEREBY ORDERED that: 1. Petitioner’s motion to stay (ECF No. 17) is vacated; 2. Petitioner’s August 12, 2019 notice of completion of exhaustion is construed as a motion to amend; respondent shall file a response to the motion to amend within thirty days of the date of this order; petitioner may file a reply within thirty days thereafter. Dated: August 23, 2019 i Aectl Aharon UNITED STATES MAGISTRATE JUDGE X1373.vac