(HC) Riley v. Lazano ( 2019 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 RICO LYNTICE RILEY, No. 2: 18-cv-3050 KJN P 12 Petitioner, 13 v. ORDER 14 JARED D. LAZANO, 15 Respondent. 16 17 Petitioner is state prisoner, proceeding without counsel, with a petition for writ of habeas 18 corpus pursuant to 28 U.S.C. § 2254. Petitioner raises four claims for relief: 1) Batson1 error; 19 2) unavailability of jury questionnaires renders review of Batson claim unfair; 3) ineffective 20 assistance of trial counsel; and 4) ineffective assistance of appellate counsel. Petitioner exhausted 21 claims one and two. In the petition, petitioner alleged that claims three and four were pending in 22 a habeas corpus petition filed in the Sacramento County Superior Court. 23 Pending before the court is petitioner’s May 15, 2019 motion to stay this action pending 24 exhaustion of his unexhausted claims. (ECF No. 9.) On October 9, 2019, petitioner filed a letter 25 with the court alleging that he sent a habeas corpus petition to the California Supreme Court 26 raising his unexhausted ineffective assistance of trial and appellate counsel claims. (ECF No. 12.) 27 28 1 Batson v. Kentucky, 476 U.S. 79 (1986). 1 | Petitioner alleges that the California Supreme Court returned the petition, unfiled. id.) Attached 2 | to petitioner’s October 9, 2019 letter is a letter addressed to petitioner from the Clerk of the 3 | California Supreme Court dated September 26, 2019. (Id. at 2.) The letter states, 4 Returned unfiled is your petition for review received September 26, 2019. The order of this court filed on November 29, 2017, denying 5 the above-referenced petition, was final forthwith and may not be considered or reinstated. Please rest assured, however, that the entire 6 court considered the petition for review and the contentions made 7 therein, and the denial expresses the court’s decision in this matter. 8 | Ud.) 9 Attached to petitioner’s October 9, 2019 letter is a copy of the November 29, 2017 order 10 | by the California Supreme Court denying his petition for review. (Id. at 3.) The petition for 11 || review raised petitioner’s exhausted claims alleging Batson error and the unavailability of jury 12 || questionnaires renders review of Batson claim unfair. (ECF No. 1 at 2.) 13 It appears that petitioner mistakenly sent his petition for review to the California Supreme 14 | Court. In other words, petitioner did not file a habeas corpus petition in the California Supreme 15 | Court raising his unexhausted ineffective assistance of trial and appellate counsel claims. 16 | Therefore, petitioner’s ineffective assistance of trial and appellate counsel claims are not 17 | exhausted. In order to exhaust these claims, petitioner must file a habeas corpus petition in the 18 | California Supreme Court raising these claims. 19 Accordingly, IT IS HEREBY ORDERED that: 20 1. Petitioner has not demonstrated proof of exhaustion of his unexhausted claims; 21 2. Petitioner’s motion to stay this action is still pending before the court. 22 | Dated: October 17, 2019 23 Al 7 Norra 24 KENDALL J. Wan UNITED STATES MAGISTRATE JUDGE 25 26 Ril3050.ord 27 28