David Anthony Adams Jr v. Ken Clark, No. 2:2019cv04252 - Document 41 (C.D. Cal. 2022)
Court Description: ORDER ACCEPTING FINDINGS AND RECOMMENDATIONS OF U.S. MAGISTRATE JUDGE by Judge Fernando L. Aenlle-Rocha for Report and Recommendation (Issued) 37 . It therefore is ORDERED that Respondents motion to dismiss is GRANTED IN PART, Petitioner 9;s stay motion is DENIED, Petitioner's request that his unexhausted claims be dismissed is GRANTED, the portion of ground three of the Petition relating to alleged evidence tampering is DISMISSED, and no later than 45 days from the date of this Order, Respondent must file an answer to the Petition's grounds one, two, and four, and the remaining subclaim of ground three. re 9 and 13 . (et)
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David Anthony Adams Jr v. Ken Clark Doc. 41 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 DAVID ANTHONY ADAMS JR., Petitioner, 12 13 v. 14 15 16 Case No. 2:19-cv-04252-FLA (JPR) ORDER ACCEPTING FINDINGS AND RECOMMENDATIONS OF U.S. MAGISTRATE JUDGE WARREN MONTGOMERY, Warden, Respondent. 17 18 Pursuant to 28 U.S.C. § 636, the court has reviewed the Petition, records on file, 19 and Report and Recommendation (“R. & R.”) of U.S. Magistrate Judge. On January 20 13, 2022, Respondent objected to one aspect of the R. & R., the Magistrate Judge’s 21 conclusion that ground four of the Petition is exhausted. Despite requesting and 22 receiving an extension of time, Petitioner has neither filed his own objections nor 23 responded to Respondent’s. 24 The Magistrate Judge did not err in concluding that ground four is exhausted, 25 albeit likely not cognizable on federal habeas review. (See R. & R. at 7-8.) As she 26 noted, Petitioner did not cite any federal authority to support his claim that the 27 prosecutor’s use at trial of certain photographs was unfairly prejudicial, either in the 28 Petition or when he presented the claim to the California Supreme Court. (Id.) 1 Dockets.Justia.com 1 Respondent argues that Petitioner, “a pro se litigant, is presumed to have raised a 2 federal claim in his 2254 form petition” and therefore the claim has not been 3 exhausted because no federal aspect of it was ever raised in state court. (Objs. at 1-2.) 4 Not only has Respondent not cited any law for this proposition, 1 but it belies 5 Respondent’s routine, and appropriate, practice of arguing in federal court that a pro 6 se habeas petitioner’s claim is not cognizable and must be dismissed because it raises 7 a state-law claim only. Were the court to accept Respondent’s position in his 8 Objections, he could never raise that argument again. The court doubts very much 9 that that is what Respondent wants. 10 Accordingly, having made a de novo review of that portion of the R. & R. to 11 which Respondent objected, the court accepts the Magistrate Judge’s findings and 12 recommendations. It therefore is ORDERED that Respondent’s motion to dismiss is 13 GRANTED IN PART, Petitioner’s stay motion is DENIED, Petitioner’s request that 14 his unexhausted claims be dismissed is GRANTED, the portion of ground three of the 15 Petition relating to alleged evidence tampering is DISMISSED, and no later than 45 16 days from the date of this Order, Respondent must file an answer to the Petition’s 17 grounds one, two, and four, and the remaining subclaim of ground three. 18 19 IT IS SO ORDERED. 20 21 Dated: April 1, 2022 22 ______________________________ FERNANDO L. AENLLE-ROCHA United States District Judge 23 24 25 26 27 28 1 Respondent does cite law for the unremarkable proposition that a federal habeas claim must rely on federal authority to be exhausted. (See Objs. at 1.) However, all of the cases are readily distinguished because none of them involved a petitioner, like Petitioner here, who cited no federal law in either state court or his federal petition. 2
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