Peter V Bashkiroff v. State of California, No. 2:2011cv05219 - Document 17 (C.D. Cal. 2011)

Court Description: ORDER ACCEPTING FINDINGS AND RECOMMENDATIONS OF U.S. MAGISTRATE JUDGE by Judge J. Spencer Letts for Report and Recommendation 14 : Court concurs with and accepts the Magistrate Judge's recommendations 14 that Respondent's Motion to Dismiss be granted and Judgment be entered denying the Petition and dismissing this action without prejudice for failure to exhaust state remedies. (rla)

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Peter V Bashkiroff v. State of California 1 Doc. 17 2 I HEREBY CERTIFY THAT THIS DOCUMENT WAS SERVED BY._ • FIRST CLASS MAIL POSTAGE PREPAID, TO A~l eBilNSEl ,,~ ~ ()\'\e( (O~ po ~lI~g) AT THEIR RESPECTIVE MOST RECENT ADDRESS OF 3 DllTED: 1l,-~UllU IN I HIS At: IIUN UN IHIS VAil. \'2--Z'O. 1\ DEP~~ 4 ?? z FILED· SOUTHERN QIVISION CLERK, U.S. DISTRICT eaURl '? '( DEC 202011 CENTA~ ~[lJSTRICT __ BY 5 OF CALIFORNIA DEPUTY '-.J 6 UNITED STATES DISTRICT COURT 7 CENTRAL DISTRICT OF CALIFORNIA 8 9 PETER V. BASHKIROFF, ) Case No. CV 11-5219-JSL (JPR) 10 ) Petitioner, 11 12 vs. MARK V~REL~, 13 14 15 Director, ) ) ORDER ACCEPTING FINDINGS AND ) RECOMMENDAT:ONS OF U.S. ) MAGISTRATE JUDGE ) ) Respondent. ) --------------) 16 Pursuant to 28 U. S. C. § 636, the Court has reviewed the 17 Petition, all the records ane files of this case, and the Report 18 and 19 filed "Objections & Opposition" to the Report and Recommendation, 20 and the Court has made a de novo determination of those portions of 21 the Report and Recommendation to which objections have been made. 22 Reco~~endation of the U.S. Magistrate Judge. The Petitioner In his obje8tions, Petitioner contends that Sanders v. Ryder, 23 342 F.3d 24 he be found to have "fairly presented" his ineffective-assistance- 25 of-counsel claims to the California Supreme Court. 26 that 27 "ineffective assistance of counsel" is enough by itself to fairly in 991 (9th Cir. 2003), controls this case and mancates that some circumstances the mere invocation Sanders held of the 28 present the federal nature of the claim to a state court. words Id. at 1 Dockets.Justia.com 1 999. Peti tioner, however, used that phrase only once in his 2 California 3 counsel, and only in the section of the brief labeled "Statement of 4 Facts." 5 anywhere in the Argument section of the brief, nor did he anywhere 6 in that petition delineate his claims. 7 Recommendation, 8 portion cf the U.S. Constitution. 9 "fairly presented" the federal nature of any of the claims he now 10 Supreme Court habeas peti tien, (See Lodged Doc. he including raises, the Even if As noted in the cite any federal ~eport and cases or any Thus, it cannot be said that he ineffective-assistance-of-trial-counsel 11 claim, to the California Supreme 12 trl a 1 He did not use the phrase 3a at 3.) also did not describing his Petitioner's Co~rt. single invocation of the phrase 13 "ineffective assistance of trial counsel" could be said to have 14 exhausted that claim, 15 petition, containing exhausted and unexhausted claims, and would 16 therefore require dismissal under Rose v. Lundy, 455 U.S. 509, 522, 17 102 S. Ct. 1198, 1205, 71 L. Ed. 2d 179 (1982). 18 his Petition would be rendered a "mixed" The Court therefcre concurs with and accepts the Magistrate 19 Judge's 20 granted and Judgment be entered denying the Petition and dismissing 21 this 22 remedies. 23 recommendations action without that Respondent's Motion to prejudice for failure to Dismiss be exhaust IT IS SO ORDERED. 24 25 26 DATED: J. SPENCER LETTS UNITED STATES DISTRICT JUDGE 27 28 2 state

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