PROCEEDINGS: (IN CHAMBERS) (1) ORDER DISMISSING PETITION WITHOUT PREJUDICE AND AFORDING PETITIONER THE OPORTUNITY TO FILE AN AMENDED PETITION; AND (2) ORDER DENYING PETITIONER'S REQUEST TO STAY THIS PROCEEDING
ROSALYN M. CHAPMAN, United States Magistrate Judge.
On January 15, 2010, petitioner Clifford Dixon III, aka Clifford Harrison Dixon III, proceeding pro se, filed a habeas corpus petition under 28 U.S.C. § 2254, and on March 17, 2010, respondent filed a motion to dismiss the petition. The petitioner filed his opposition to the motion to dismiss on April 19, 2010.
The pending habeas corpus petition raises the following claims:
Ground Two—"Confrontation of witnesses: Trial Court Abused it's [sic] Discretion and violated petitioner's U.S. Constitutional Rights when it restricted and/or refused to allow petitioner to Question Key Witness `Tracy L Dixon' on cross-examination as to her bias against petitioner." (Petition at 7 and attached pages.)
Ground Three—"Ineffective Assistance of Counsel at Trial and on Direct Appeal; In violation of Petitioner's Right to Effective Assistance of Counsel under the U.S. Constitution and the Fifth, Sixth and Fourteenth Amendments." (1) Trial Counsel failed to conduct and/or have an adequate and effective investigation conducted prior to trial surrounding potential bias and/or fals[e] testimony being given by Tracy L. Dixon against the petitioner.... (2) Petitioner has a right under federal, and state law to expect adequate representation to present his defense in the fullest degree which includes all supporting evidence, as well as Testimony. Failure to give petitioner this opportunity denies him his constitutional rights as a matter of law, as it did to petitioner herein. (3) Counsel's failure to fully investigate all pertinent facts as outlined herein puts an undue burden on petitioner `after the fact' to attempt to prove these facts `after' the trial was over. It also gave the prosecution an advantage they were not entitled to by taking some of the burden off of them to prove their case beyond a reasonable doubt. This prejudiced petitioner and denied him his right to a fair trial, as he was denied the right to present favorable evidence that could have changed the minds of one or more jurors in a favorable way to petitioner. (Petition at 8-8A and attached pages.)
Ground Four—"`Actual Innocence' [in violation of the] Fourteenth Amendment [and] Sixth Amendment." (Petition at 9 and attached pages.)
On October 7, 2005, in Riverside County Superior Court case no. RIF118358, a jury convicted petitioner of two counts of spousal rape in violation of California Penal Code ("P.C.") § 262 (counts 1 & 2), one count of spousal abuse in violation of P.C. § 273.5(a) (count 3), one count of assault with a deadly weapon (belt) in violation of P.C. § 245(a)(1) (count 4), two counts of criminal threats in violation of P.C. § 422 (counts 5 & 6), one count of false imprisonment by violence or menace in violation of P.C. § 236 (count 7), and one count of assault with a rifle in violation of P.C. § 245(a)(2) (count 8), and the jury also determined petitioner personally used a firearm during the commission of count 1, 6 and 8 within the meaning of P.C. §§ 1192.7(c)(8) and 12022.53(b), used a firearm during the commission of count 1 within the meaning of P.C. § 667.61(e)(4), and engaged in tying or binding the victim during the commission of count 2 within the meaning of P.C. § 667.61(e)(6). Clerk's Transcript ("CT") 155-56, 180-92. On December 16, 2005, the trial court sentenced petitioner to a determinate term of 10 years in state prison to be followed by an indeterminate term of 15 years to life in state prison. CT 236-38, 257-59.
The petitioner appealed his convictions and sentence to the California Court of Appeal, CT 261, Lodgment nos. 13-15, which, in an unpublished opinion filed March 17, 2008, 2008 WL 699070, found "the trial court could not impose the 10-year weapon use enhancement consecutive
On March 10, 2009, petitioner filed a habeas corpus petition in the Riverside County Superior Court, which denied the petition on April 10, 2009. Lodgment nos. 4-5.
On May 13, 2009, petitioner filed a second petition for habeas corpus relief in the Riverside County Superior Court, which denied the petition on May 14, 2009. Lodgment nos. 6-7. On July 8, 2009, petitioner filed a habeas corpus petition in the California Court of Appeal, which denied the petition on July 17, 2009. Lodgment nos. 8-9.
On November 5, 2009, petitioner filed his third habeas corpus petition in the Riverside County Superior Court, which denied the petition on November 12, 2009.
The petitioner has failed to comply with Rule 2(c) of the Rules Governing Section 2254 Cases in the United States District Courts, as respondent aptly notes. Rule 2(c) requires petitioner to sign and verify his habeas corpus petition. See Rule 2, 28 foll. U.S.C. § 2254 (petition must "be signed under penalty of perjury by the petitioner or by a person authorized to sign it for the petitioner under 28 U.S.C. § 2242"); 28 U.S.C. § 2242 ("Application for a writ of habeas corpus shall be in writing signed and verified by the person for whose relief it is intended or by someone acting in his behalf."). Here, petitioner did not sign or verify the pending petition. Thus, respondent's motion to dismiss should be granted, and the petition must be dismissed with leave to amend.
A California prisoner seeking federal habeas corpus relief must exhaust his claims before the California courts prior to filing for habeas corpus relief in federal court. 28 U.S.C. § 2254(b) and (c),; Baldwin v. Reese, 541 U.S. 27, 29, 124 S.Ct. 1347, 1349, 158 L.Ed.2d 64 (2004); O'Sullivan v. Boerckel, 526 U.S. 838, 842, 119 S.Ct. 1728, 1738, 144 L.Ed.2d 1 (1999); Peterson v. Lampert, 319 F.3d 1153, 1155 (9th Cir.2003) (en banc). "The exhaustionof-state-remedies doctrine, now codified [at] 28 U.S.C. § 2254(b) and (c), reflects a policy of federal-state comity, an accommodation of our federal system designed to give the State an initial opportunity to pass upon and correct alleged violations of its prisoners' federal rights." Picard v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509,
Here, petitioner has not exhausted Grounds Three and Four before the California Supreme Court.
The petitioner requests this Court stay this proceeding and hold his habeas corpus petition in abeyance while he exhausts his state court remedies on Ground Four, which he acknowledges is an unexhausted claim.
Here, petitioner has not shown good cause to stay this proceeding. Indeed, petitioner offers absolutely no explanation for his failure to exhaust Grounds Three and Four before filing this case-especially since this Court in Dixon I clearly explained to petitioner that Ground Four had not been exhausted.
1. Respondent's motion to dismiss
2. Petitioner's request to stay this proceeding and to hold it in abeyance while he
3. The Clerk of Court shall mail to petitioner the Court's habeas corpus form.