Opinion
Civil No. 05cv1051 L (POR).
January 11, 2006
REPORT AND RECOMMENDATION GRANTING RESPONDENT'S MOTION TO DISMISS PETITION FOR WRIT OF HABEAS CORPUS
INTRODUCTION
On July 25, 2005 Petitioner Stephen Floyd Ullrich, proceeding pro se, filed a First Amended Petition for Writ of Habeas Corpus ("Petition") pursuant to 28 U.S.C. section 2254, alleging two grounds for relief. Petitioner contends that he was innocent despite his guilty plea, and that his guilty plea was invalid because he lacked mental capacity at the time it was taken. (Petition at 5, 6.) Respondent moves to dismiss the Petition on three grounds. First, Respondent contends that Petitioner was not "in custody" at the time he filed his Petition. Second, Respondent contends that the Petition is barred by the statute of limitations. Third, Respondent contends that Petitioner failed to exhaust his claims at the state level, but in the event that this Court finds one of the claims to be exhausted, the Petition is nonetheless procedurally barred because it would constitute a mixed petition. (Motion to Dismiss at 1.) This Court has reviewed the Petition for Writ of Habeas Corpus, Respondent's Motion to Dismiss, Petitioner's Objection to Respondent's Motion to Dismiss and all supporting documents. After thorough review, this Court recommends Respondent's Motion to Dismiss be GRANTED and the Petition for Writ of Habeas Corpus be DISMISSED WITH PREJUDICE for the reasons outlined below.
STATE COURT PROCEEDINGS
On March 5, 1997, Petitioner pled guilty to petty theft with a prior, and was sentenced on April 10, 1997 to three years of formal probation. (Lodgment No. 1 at 1; Lodgment No. 2.) On November 6, 1998, Petitioner's probation was revoked because he failed to appear, and a felony bench warrant was issued for his arrest. (Lodgment No. 3.) This warrant remains outstanding. (Lodgment No. 3.) At some point, Petitioner was arrested in Idaho on an unrelated offense. On June 2, 2004, Petitioner filed a Petition for Writ of Habeas Corpus directly with the California Supreme Court, contending that his guilty plea was invalid because his capacity was diminished at the time his plea was accepted. (Lodgment No. 4 at 3; Lodgment No. 6.) The California Supreme Court denied the Petition without a reasoned decision, but cited In re Robbins, 18 Cal.4th 770, 780 (1998) and In re Swain, 34 Cal.2d 300, 304 (1949). (Lodgment No. 5.)
FEDERAL COURT PROCEEDINGS
On July 25, 2005, Petitioner filed an Amended Petition for Writ of Habeas Corpus ("Petition") with this Court. (Docket No. 5.) On September 7, 2005, Respondent filed a Motion to Dismiss the Petition ("Motion to Dismiss"), with a Memorandum of Points and Authorities ("PA") in support. (Docket No. 8; Docket No. 9.) Petitioner then filed an Objection ("Objection") to the Motion to Dismiss. (Docket No. 11.)
DISCUSSION
Respondent moves to dismiss the Petition on three grounds. First, Respondent contends that Petitioner was not "in custody" at the time he filed his Petition. Second, Respondent contends that the Petition is barred by the statute of limitations. Third, Respondent contends that Petitioner failed to exhaust his claims at the state level, but in the event that this Court finds one of the claims to be exhausted, the Petition is nonetheless procedurally barred because it would constitute a mixed petition. (Motion to Dismiss at 1.)
I. The "In Custody" Requirement Of Federal Habeas Corpus
Respondent contends that the Petition must be dismissed because Petitioner was a fugitive from California's custody at the time he filed his Petition, and thus not "in custody" as required for relief under the federal habeas statute. 28 U.S.C. §§ 2241(c)(3), 2254(a). (Motion to Dismiss at 1.) Petitioner contends that although he was technically a fugitive, he was not aware of his fugitive status until after he filed for redress in Idaho after being arrested on an unrelated charge. Furthermore, he argues that because the underlying conviction was illegally obtained, he was in custody. (Objection at 3.)
28 U.S.C. section 2241(c)(3) provides: "The writ of habeas corpus shall not extend to a prisoner unless . . . [h]e is in custody in violation of the Constitution or laws or treaties of the United States . . ." 28 U.S.C. § 2241. Furthermore, 28 U.S.C. section 2254(a) limits the issuance of a writ of habeas corpus to a person "in custody," pursuant to a judgment of a state court in violation of the Constitution or laws or treaties of the United States. 28 U.S.C. § 2254(a).
Federal Courts have found that a petitioner does not satisfy the "in custody" requirement if he is a fugitive. For example, in Gonzales v. Stover, 575 F.2d 827 (10th Cir. 1978), the Tenth Circuit refused to entertain a habeas petition from a fugitive, stating:
For over 100 years the Supreme Court has consistently refused to grant post-conviction review for escaped prisoners. Smith v. United States, 94 U.S. 97, (1876); Estelle v. Dorrough, 420 U.S. 534 (1975). These decisions make it clear that the Court's informal policy is grounded on considerations which favor voluntary surrender and discourage escape. The Court has also stated that although a prisoner's fugitive status does not necessarily strip a case of its character as a justiciable controversy, it does however disentitle a petitioner in absentia to call upon the resources of the Court for determination of his claims. Molinaro v. New Jersey, 396 U.S. 365 (1970). In our decisions we have adhered to this policy with respect to both post-conviction and criminal matters involving fugitive-appellants. Lopez v. Malley, 552 F.2d 682 (10th Cir. 1977); United States v. Swigart, 490 F.2d 914 (10th Cir. 1973). The rationale expressed by the Supreme Court in Molinaro, seems fully applicable to the situation which confronted the district court in this case.Gonzales, 575 F.2d 827, 827-28 (10th Cir. 978).
Here, although Petitioner argues that the issue of his fugitive status is moot, the "in custody" requirement clearly requires that for federal habeas corpus relief to be proper, Petitioner must experience some illegal restraint upon his liberty. (Objection at 3.) Fugitives do not qualify as such. Petitioner admits that he is a fugitive from California custody, and although he may or may not have known of his fugitive status, his ignorance does not circumvent the ultimate purpose of the writ of habeas corpus, which is to secure the release of persons being held "in custody" illegally. Granted, the "in custody" requirement has been construed more broadly than the literal restraint imposed by incarceration. Jones v. Cunningham, 371 U.S. 236, 238 (1963). However, this broad interpretation does not extend to fugitives. Gonzales, 575 F.2d 827, 827-28 (10th Cir. 978). The clear language of sections 2241 and 2254 require Petitioner to be "in custody" at the time he filed the Petition. Accordingly, this Court recommends that the Petition be dismissed on this ground.
Although this Court recommends the Petition be dismissed based upon the "in custody" requirement, Respondent has raised alternate grounds for dismissal in the Motion to Dismiss which are considered below to fully develop the record and facilitate any possible appellate review.
II. Statute of Limitations
Respondent contends that the Petition is barred by the one-year statute of limitations applicable to federal habeas corpus petitions under the Antiterrorism and Effective Death Penalty Act ("AEDPA"). (PA at 3-4.) The AEDPA applies to all federal habeas petitions filed after April 24, 1996. See Lindh v. Murphy, 521 U.S. 320 (1997). The instant Petition was filed on July 25, 2005 and therefore is governed by AEDPA. AEDPA provides for a one-year limitations period for state prisoners to file a federal habeas petition in federal court. 28 U.S.C. § 2244(d)(1).
A. Commencement of the of the Statute of Limitations
1. Final Judgment
AEDPA's one-year statute of limitations begins to run on "the date on which judgment became final by the conclusion of direct review or the expiration of the time for seeking such review." 28 U.S.C. § 2244(d)(1)(A). Under California law, to appeal an adverse ruling by the Superior Court, a party must file a notice of appeal within sixty days after rendition of the judgment. Cal. Penal Code § 1237.5; Cal. Rule of Court 31(d). If no notice of appeal is filed, the judgment becomes final after the sixty days for seeking such review expires. Id.
In the instant case, Petitioner never appealed his conviction and he was subsequently sentenced on April 11, 1997 to three years of formal probation. (Lodgment No. 2.) Thus, the judgment became final sixty days later on June 10, 1997. The statute of limitations period expired one year later on June 10, 1998. See Patterson v. Stewart, 251 F.3d 1243, 1246 (9th Cir. 2001).
Thus, absent any tolling of AEDPA's limitations period, Petitioner's federal petition would have had to be filed by June 10, 1998. Petitioner filed the present Petition on July 25, 2005, over seven years after the expiration of the one-year deadline. Therefore, absent any delay in the commencement of the limitations period, the petition is barred by the statute of limitations in relation to the date of final judgment.
2. Discovery of a Factual Predicate
AEDPA allows the statute of limitations to run "from the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence," if such date is later than the date on which the judgment became final. 28 U.S.C. § 2244(d)(1)(D). Respondent contends that Petitioner's claims of actual innocence and invalidity of the plea relate to his 1997 sentencing, and thus eliminate any argument that the factual predicate was belatedly discovered. (PA at 4.) Petitioner contends that because he suffered from psychological problems at the time of sentencing, he was not aware that he was on probation; thus, the one year statute of limitations should commence from the time he discovered he was on probation, while later filing avenues of redress in Idaho. (Objection at 3.)
Section 2244(d)(1)(D) applies to those who could not discover the factual predicate for their claims, not those who "sleep on their rights." Fisher v. Johnson, 174 F.3d 710, 715 (5th Cir. 1999); see also Majoy v. Roe, 296 F.3d 770, 777 n. 3 (9th Cir. 2002). "[C]ourts appear to require that the defendant show some kind of measure of prudence, activities or assiduity as may be properly expected from and ordinarily exercised by a reasonable and prudent person under the particular circumstances present." Frazier v. Rogerson, 248 F. Supp. 2d 825, 833 (N.D. Iowa 2003).
The burden is on the petitioner to persuade the court that he has exercised due diligence. Lott v. Coyle, 261 F.3d 594, 605-06 (6th Cir. 2001). An application that "merely alleges that the applicant did not actually know the facts underlying his . . . claim" is insufficient to show due diligence. In re Boshears, 110 F.3d 1538, 1540 (11th Cir. 1997). The statute of limitations "begins when the prisoner knows (or through diligence could discover) the important facts, not when the prisoner recognizes their legal significance." Hasan v. Galaza, 254 F.3d 1150, 1154 n. 3 (9th Cir. 2001).
This Court is concerned with the time in which Petitioner could have learned of the factual predicate giving rise to his claim. Without expressing an opinion as to whether Petitioner's allegations even rise to the level of a constitutional violation, it is clear that the basis of Petitioner's claim rests on two main facts: first, that he was mentally incompetent at the time his guilty plea was accepted, and second, he was convicted and placed on probation, despite his incompetent state of mind, because of which he was not aware that he had been placed on probation. However, even granting Petitioner the absolute widest latitude possible, Petitioner fails to establish that the factual predicate for his claim was undiscoverable.
First, Petitioner was aware of his mental disabilities as early as February 29, 2000, when he received a letter from "Mesa Vista Hospital" in response to his request for records. The letter indicated that Petitioner suffered from bipolar affective disorder, alcohol dependence, schizoid personality traits, hepatitis C, and mild malnutrition. (Lodgment No. 4 at 29.) Thus, even if the discovery of this fact was unascertainable before the issuance of the letter from the hospital, Petitioner would still have had over one year from the date that he learned of his mental state to file a petition.
Petitioner attached this letter to his state habeas petition.
Petitioner likely knew of his characterized mental conditions well before this date. Petitioner included records from 1998 from North Dakota State Hospital, when Petitioner was examined and treated for similar symptoms. (Lodgment No. 4 at 32-39.) However, the February 2000 letter from the hospital demonstrates a clear point in time that Petitioner was undoubtedly aware of his mental deficiencies.
Second, the fact that Petitioner was convicted and placed on probation in 1997, despite his incompetent state of mind, was reasonably discoverable in the seven years since the conviction occurred. The statute of limitations "begins when the prisoner knows (or through diligence could discover) the important facts . . ." Hasan, 254 F.3d at 1154 n. 3. It is unreasonable that Petitioner would have completely forgotten or not known that he was incarcerated, convicted, and placed on probation, which is what Petitioner would have to demonstrate for this claim. Petitioner has the burden of proving this fact and he has failed to do so. Petitioner does not show that his diagnosis with bipolar disorder has in any way prevented him from understanding or knowing the facts with respect to his plea agreement. It is not enough for Petitioner to establish he has a mental illness; he must also offer evidence that the illness prevented him in some way from understanding the results of the plea agreement.
Thus, even if Petitioner first realized as late as February 2000 that he suffered from such medical conditions that could have affected the plea that led to his conviction in 1997, his own state petition indicates that he was aware of his mental disabilities in 2000. The statute of limitations "begins when the prisoner knows (or through diligence could discover) the important facts, not when the prisoner recognizes their legal significance." Hasan, 254 F.3d at 1154 n. 3. The statute of limitations would still have expired by February 2001 in relation to the discovery of a factual predicate giving rise to a constitutional violation.
3. Newly-Recognized, Retroactive Constitutional Right
AEDPA also states that the statute of limitations period may run from "the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review," if such date is later than the date on which the judgment became final. 28 U.S.C. § 2244(d)(1)(c). Accordingly, Petitioner argues that the United States Supreme Court case Tennessee v. Lane, 541 U.S. 509 (2004), established a newly recognized, retroactive constitutional right regarding Americans with disabilities, causing the statute of limitations to run from the date Lane was decided, on May 17, 2004. (Objection at 2-3.)
In Lane, plaintiffs sued the state of Tennessee, alleging that it failed to provide reasonable access to court facilities in violation of Title II of the Americans with Disabilities Act of 1990. Lane, 541 U.S. at 509; 42 U.S.C. § 12131. After Tennessee was denied sovereign immunity, it contended that the abrogation of state sovereign immunity in Title II of the ADA exceeded congressional authority. However, the Supreme Court held that Title II, as it applied to the class of cases implicating the fundamental right of access to the courts, constituted a valid exercise of Congress's authority. Lane, 541 U.S. at 531.
Here, the constitutionality of Title II of the ADA in protecting access to court is inapplicable to the facts of the present Petition. Petitioner does not allege any facts to indicate Lane applies to this case. Thus, Lane does not provide Petitioner with a newly conferred retroactive right and the statute of limitations did not commence on the date Lane was decided.
Thus, Petitioner fails to satisfy his burden of proving either the existence of a factual predicate under 28 U.S.C. section 2244(d)(1)(D) or the existence of a newly recognized, retroactive constitutional right under 28 U.S.C. section 2244(d)(1)(c). Therefore, the statute of limitations for the present Petition expired on June 10, 1998, unless Petitioner can demonstrate the following: (1) that AEDPA's statutory tolling provision brings the Petition within the limitations period; or (2) that the doctrine of equitable tolling applies to extend the filing date.
B. Statutory Tolling
Respondent contends that because Petitioner filed his state petition after the expiration of the statute of limitations, he is not entitled to statutory tolling. (PA at 4.) AEDPA's statutory tolling provision provides:
The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection.28 U.S.C. § 2244(d)(2).
Thus, the statute of limitations is tolled from the time the first state habeas petition is filed until the California Supreme Court rejects the petitioner's final collateral challenge, as long as the petitioner did not "unreasonably delay" in seeking review. See Carey v. Saffold, 536 U.S. 214 (2002).
Here, the statute of limitations commenced on June 10, 1997, the date his judgment became final, and expired after one year, on June 10, 1998. Petitioner filed his first petition for collateral review in the California Superior Court on June 2, 2004. (Lodgment No. 4.) Because this date is after the expiration date of the statute of limitations, the statutory tolling provision does not bring Petitioner within the statute of limitations period.
C. Equitable Tolling
Equitable tolling applies to AEDPA's one-year statute of limitations. Calderon v. United States Dist. Court (Beeler), 128 F.3d 1283, 1288 (9th Cir. 1997), overruled in part on other grounds by Calderon v. United States Dist. Court (Kelly), 163 F.3d 530 (9th Cir. 1998). To be entitled to equitable tolling, a petitioner bears the burden of establishing: (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstances stood in his way. Pace v. DiGuglielmo, ___ U.S. ___, 125 S. Ct. 1807, 1814 (2005). The burden of demonstrating grounds warranting equitable tolling rests with the petitioner. Pace, 125 S. Ct. at 1814.
Mental incompetency may equitably toll AEDPA's limitation period when it is an extraordinary circumstance beyond a prisoner's control. See United States District Court (Kelly), 163 F.3d 530, 541. However, a showing of mental illness alone will not toll the limitation period. Under federal common law, mental illness tolls a limitation period only if "the illness in fact prevents the sufferer from managing his affairs and thus from understanding his legal rights and acting upon them." Miller v. Runyon, 77 F.3d 189, 191 (7th Cir. 1996.)
Here, Petitioner alleges that he was not aware of his violated probation status in California until he filed avenues of redress while in prison in Idaho, because his mental deficiencies caused him to be unaware of what had happened to him. In this scenario, Petitioner, after living some period of time in ignorance of his incarceration, conviction, probation and violation of probation, which was all due to his mental deficiency, Petitioner finally discovered that he was wanted for probation violation in California. At this point, equitable tolling would cease to run, and the statute of limitations would commence.
The burden of proof lies with Petitioner, and he falls substantially short of satisfying it. First, it is unclear as to what Petitioner is actually alleging. Petitioner either alleges that he lost all recollection of his guilty plea and probation in California, and that the statute of limitations should be equitably tolled until he realized that he was in violation of his probation. Alternatively, Petitioner alleges not necessarily that he lost all recollection of his California conviction, but that he left California, not knowing that he would violate his probation. Judging from the substance of his claims included in this Petition, it seems that he argues the former, especially considering that one of his claims for relief is the invalidation of his plea, based upon his mental incapacity at the time he entered the plea.
Aside from deciphering Petitioner's actual allegations, he simply has not provided this court with the necessary facts in order to carry his burden of proving extraordinary circumstances. Most importantly, he does not indicate the date he learned of his probation violation in California while filing his avenues of redress in Idaho. Without this fact, this Court cannot determine when the extraordinary circumstances of his mental deficiency prevented him from recalling that he was previously convicted and placed on probation in California. Indeed, this date could have been several years in the past. Thus, even if equitable tolling is appropriate in this circumstance, it is unclear as to how long this tolling period would extend, and it certainly would not extend past the date that Petitioner discovered that he was in violation of probation. If one year passed since this date, even with the assistance of equitable tolling, the statute of limitations would still expire. Therefore, because Petitioner has not satisfied the burden necessary for equitable tolling, the equitable tolling provision does not bring Petitioner within the statute of limitations period.
Petitioner is not entitled to the benefit of 28 U.S.C. section 2244(d)(1)(c), 28 U.S.C. section 2244(d)(1)(D), statutory tolling, or equitable tolling of AEDPA's one-year statute of limitations, therefore this Court recommends that the Petition be dismissed on this ground.
III. Exhaustion
Respondent contends that Petitioner failed to exhaust in state court, both grounds contained in the instant Petition, the "actual innocence" claim and the "invalid plea" claim. Respondent contends that the Petition should be dismissed because the claims were not "fairly presented" to the highest state court. (PA at 4.)
A. Actual Innocence
Petitioner's first claim in the instant Petition is that he was actually innocent of the crime to which he pled guilty. (Petition at 6.) Respondent contends that Petitioner failed to include this claim in his state petition, rendering this claim unexhausted. (PA at 4.) Petitioner argues the contrary. (Objection at 4; Petition at 6.)
"An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that . . . the applicant has exhausted the remedies available in the courts of the State . . ." 28 U.S.C. § 2254(b)(1). In order to satisfy state exhaustion requirements, a petitioner must "fairly present" all federal claims to the state supreme court before the federal court may rule on the federal petition. Baldwin v. Reese, 541 U.S. 27, 29 (2004); Rose v. Lundy, 455 U.S. 509, 510 (1982).
Here, Petitioner presented only one claim to the California Supreme Court in his state petition, the "invalid plea" claim. (Lodgment No. 4 at 3.) The "actual innocence" claim was not presented, therefore, Petitioner's "actual innocence" claim is not exhausted.
B. Invalid Plea
Petitioner's second claim in the instant Petition is that his guilty plea was invalid because he was mentally incompetent at the time it was accepted. (Petition at 7.) Respondent contends that it appears Petitioner failed to properly present the "invalid plea" claim under the federal constitution, which requires dismissal. (PA at 4.)
In denying Petitioner's state petition, the California Supreme Court sent a postcard denial citing Swain and Robbins, with no additional comment. (Lodgment No. 5.) A postcard denial by the California Supreme Court citing Robbins clearly indicates untimeliness. Robbins, 18 Cal.4th at 780. However, understanding the California Supreme Court's intent when citing Swain at page 304, especially when coupled with a citation to Robbins, is less certain.
The California Supreme Court cites Swain in postcard denials for two distinct reasons. First, it can indicate that a petition is untimely. Bennett v. Mueller, 322 F.3d 573, 581 (9th Cir. 2003). When untimeliness is at issue, the California Supreme Court often cites page 302 of Swain. However, Swain is also cited to indicate that a petition is conclusory. Harris v. Superior Court of State of Cal., Los Angeles County, 500 F.2d 1124, 1127-28 (9th Cir. 1974). When conclusory language in the petition is at issue, the California Supreme Court often cites to page 304 of Swain.
The uncertainty arises when the California Supreme Court cites to page 304 of Swain as authority for untimeliness, rather than for conclusory language, as was the case in In re Sanders, 21 Cal.4th 697, 703 (1998). This confusion is compounded when this citation is coupled with a citation to Robbins, which clearly refers to untimeliness. Thus, two reasonable inferences can be made. First, it can be inferred that the California Supreme Court cited both Swain and Robbins to indicate untimeliness. On the other hand, it can be inferred that the California Supreme Court cited Robbins for untimeliness, and Swain for conclusory language. This Court recommends following the latter inference, considering the sparseness of facts and law contained in the state petition. Thus, this Court must determine whether Petitioner's state petition was merely conclusory; or whether it was sufficient to satisfy exhaustion purposes.
In order to exhaust a claim at the state level, a petitioner must demonstrate both a factual predicate underlying his claim and he must also cite a specific federal constitutional guarantee. Regarding the factual predicate, a claim for relief must include a reference to a statement of the facts in the state petition entitling the petitioner to relief. Gray v. Netherland, 518 U.S. 152, 162-63 (1996). "A thorough description of the operative facts before the highest state court is a necessary prerequisite to satisfaction of the standard . . . that a federal habeas petitioner [must] provide the state courts with a fair opportunity to apply controlling legal precedent to the facts bearing upon his constitutional claim." Kelly v. Small, 315 F.3d 1063, 1069 (9th Cir. 2003).
Regarding federal law, a claim for relief in habeas corpus must include reference to a specific federal constitutional guarantee. Gray 518 U.S. at 162-63. This requirement can be satisfied by citing federal law or the decisions of federal courts. Lyons v. Crawford, 232 F.3d 666, 668 (9th Cir. 2000). However, the mere mention of the federal Constitution as a whole, without specifying an applicable provision, or an underlying federal legal theory, does not suffice to exhaust the federal claim. Fields v. Waddington, 401 F.3d 1018, 1021 (9th Cir. 2005). Finally, for purposes of exhaustion, pro se petitions are held to a more lenient standard than counseled petitions. Sanders v. Ryder, 342 F.3d 991, 999 (9th Cir. 2003)
Here, the facts and law contained in Petitioner's state petition are meager. On the actual form, where the grounds for relief, supporting facts, and supporting cases are normally included, as a ground for relief, Petitioner directed the state court to reference his attached motion to withdraw the plea; for supporting facts, he directed the state court to reference his attached memorandum to withdraw the plea; and for supporting cases, rules or other authority, Petitioner directed the state court to reference his attached medical records regarding his mental disabilities. (Lodgment No. 4 at 3.)
Thus, turning to the attached motion and memorandum to withdraw the plea to determine the grounds that Petitioner raised before the California Supreme Court, Petitioner merely mentions "manifest injustice." (Lodgment No. 4 at 3.) On page 25 of the state petition, the motion and memorandum to withdraw the plea is included. For facts Petitioner states, "[d]efendant was convicted of larceny, from `shoplifting' by a plea of guilty in February 1997." (Lodgment No. 4 at 26.) This is the only fact cited. Petitioner then cites several federal cases for issues surrounding incompetency. Petitioner also includes medical records regarding his mental disabilities. (Lodgment No. 4 at 28-47.) However, the facts alone are unclear and understated and therefore the state court would have understood that Petitioner had only been convicted of larceny. Furthermore, although Petitioner cites several federal cases on page 26 to support withdrawal of his plea, he does not anywhere in the petition state the constitutional provision he believed to be violated in his case. This is insufficient to exhaust the state claim. Fields at 1021.
Petitioner did not fairly present either the "actual innocence" claim or the "invalid plea" claim to the California Supreme Court, therefore, this Court recommends the instant Petition be dismissed as unexhausted.
IV. Procedural Bar
Respondent contends that even if this Court were to find that Petitioner properly exhausted his "invalid plea" claim, Petitioner did not exhaust the "actual innocence" claim in state court, and thus Petitioner presents a mixed Petition, which warrants dismissal. (PA at 4.)
A federal court cannot entertain a mixed petition, which is a petition that includes both exhausted and unexhausted claims, for habeas review. Lundy, 455 U.S. at 510. The petitioner must either amend the petition to delete the unexhausted claims or accept dismissal without prejudice to pursue the unexhausted claims in state court. Lundy, 455 U.S. at 510.
Here, although this Court finds that the "invalid plea" claim in the state petition was not exhausted, even assuming that Petitioner had exhausted the "invalid plea" claim, the Petition would nonetheless be dismissed because the "actual innocence" claim was not exhausted, causing the instant Petition to be "mixed," and thus subject to dismissal. Therefore, this Court recommends that the Petition be dismissed in this regard.
CONCLUSION AND RECOMMENDATION
For all of the foregoing reasons, IT IS HEREBY RECOMMENDED that the Court issue an order: (1) approving and adopting this Report and Recommendation and (2) directing that judgment be entered granting Respondent's Motion to Dismiss the Petition with prejudice based on the fact that the statute of limitations has run and Petitioner does not meet the custody requirement for federal habeas relief. This Report and Recommendation is submitted to United States District Judge M. James Lorenz, pursuant to 28 U.S.C. § 636(b)(1) and Local Civil Rule HC.2 of the United States District Court for the Southern District of California.
IT IS ORDERED that no later than February 10, 2006 any party to this action may file written objections with the Court and serve a copy on all parties. The document should be captioned "Objections to Report and Recommendation." IT IS FURTHER ORDERED that any reply to the objections shall be filed with the Court and served on all parties no later than February 21, 2006 The parties are advised that failure to file objections with the specified time may waive the right to raise those objections on appeal of the Court's order. Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153, 1156 (9th Cir. 1991).