Long v. Pollard

[7] 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA [10] 11 EDWARD ANDREW LONG, Case No.: 20cv1291-JLS(RBB) 12 Petitioner, REPORT AND 13 v. RECOMMENDATION RE MOTION TO DISMISS PETITION FOR WRIT 14 MARCUS POLLARD, Warden, OF HABEAS CORPUS [ECF NO. 14] 15 Respondent. [16] 17 On November 30, 2020, Respondent Marcus Pollard, Warden, filed a Motion to 18 Dismiss Petition for Writ of Habeas Corpus in which he requested dismissal of Petitioner 19 Edward Andrew Long’s Petition on the basis that the Petition contained unexhausted 20 claims that were pending before the California Supreme Court [ECF No. 14]. On 21 February 1, 2021, Petitioner filed an opposition to Respondent’s motion [ECF No. 18]. 22 For the reasons set forth below, this Court recommends that Defendants’ Motion to 23 Dismiss be DENIED. 24 I. BACKGROUND 25 Petitioner initiated this action on July 8, 2020, by filing a Petition for Writ of 26 Habeas Corpus pursuant to 28 U.S.C. § 2254 [ECF No. 1]. His Petition alleges five 27 grounds for relief: (1) the trial court erred by admitting evidence of uncharged acts, [28] 1 (2) the trial court erred in its jury instruction regarding homicide, (3) ineffective 2 assistance of trial and appellate counsel for failure to challenge a sentence enhancement, 3 (4) ineffective assistance of trial counsel for failure to enter a plea of not guilty by reason 4 of insanity, and (5) ineffective assistance of appellate counsel for failure to challenge the 5 sufficiency of the evidence regarding premeditation. (Pet. 10-11, 21-39, ECF No. 1.) On 6 November 30, 2020, Respondent filed a Motion to Dismiss in which he argued that the 7 Petition should be dismissed as a mixed petition. (Mot. Dismiss Attach. #1 Mem. P. & 8 A. 1 , ECF No. 14.) Respondent contended that although grounds one through three had 9 been exhausted in California state court, grounds four and five of the Petition remained 10 pending before the California Supreme Court. (Id. at 2-4.) On February 1, 2021, 11 Petitioner filed an opposition to the motion in which he claimed that his two unexhausted 12 claims had “come to a conclusion in the California Supreme Court” on January 13, 2021. 13 (Opp’n 2, ECF No. 18.) On February 9, 2021, this Court issued an order directing 14 Respondent to notify the Court if he intended to file an Answer or if the Court should 15 proceed with consideration of his Motion to Dismiss. (Order 2, ECF No. 19.) On 16 February 12, 2021, Respondent filed a Notice of Intention to File Answer, in which he 17 indicated that he planned to file an Answer to the Petition by March 3, 2021 [ECF No. 18 20]. 19 II. DISCUSSION 20 Under 28 U.S.C. § 2254 , “An application for a writ of habeas corpus . . . shall not 21 be granted unless it appears that . . . the applicant has exhausted the remedies available in 22 the courts of the State.” See 28 U.S.C. § 2254 (b)(1)(A); see also Rose v. Lundy, 455 23 U.S. 509 , 522 (1982) (holding that federal district courts must dismiss habeas petitions 24 containing both unexhausted and exhausted claims). Here, when Respondent moved to 25 dismiss the Petition, Petitioner’s state habeas petition litigating grounds four and five was 26 still pending in California Supreme Court. (See Mot. Dismiss Attach. #1 Mem. P. & A. 27 3-4, ECF No. 14; see also Not. Lodgment Attach. #9, Long v. Pollard, S265202 (Cal. 28 filed Oct. 26, 2020), at 3-4, 8-13.) Therefore, at that time, the Petition was mixed. On 1 || January 13, 2021, however, the California Supreme Court denied the state petition. (See 2 || Opp’n 2, ECF No. 18; see also California Courts, Appellate Courts Case Information 3 || https://appellatecases.courtinfo.ca.gov/search/case/dockets.cfm?dist=0&doc_id=2332067 4 || &doc_no=S265202&request_token=NilwLSEmTkw9WyAtSCI9TEIIMDg0UDxTJSNO 5 || TzpTUCAgCg%3D%3D (last visited Feb. 18, 2021).) Therefore, grounds four and five 6 || are now fully exhausted. In view of Respondent’s intention to file an Answer rather than 7 || proceed with his Motion to Dismiss, and because the Petition now contains only 8 || exhausted claims, Respondent’s Motion to Dismiss should be DENIED AS MOOT. 9 I. CONCLUSION 10 Based on the foregoing, the Court recommends that Respondent’s Motion to 11 ||Dismiss be DENIED AS MOOT. 12 This Report and Recommendation will be submitted to the Honorable Janis L. 13 ||Sammartino, United States District Court Judge assigned to this case, pursuant to the 14 || provisions of 28 U.S.C. § 636 (b)(1). Any party may file written objections with the 15 Court and serve a copy on all parties on or before March 5, 2021. The document should 16 captioned “Objections to Report and Recommendation.” Any reply to the objections 17 || shall be served and filed on or before March 15, 2021. The parties are advised that 18 || failure to file objections within the specified time may waive the right to appeal the 19 || district court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). [20] 21 Dated: February 19, 2021 ( , 22 Hon. Ruben B. Brooks 23 United States Magistrate Judge