(HC) Maine v. Frauenheim, No. 1:2019cv00862 - Document 15 (E.D. Cal. 2019)

Court Description: FINDINGS and RECOMMENDATIONS, Recommending that Respondent's 13 Motion to Dismiss is Granted and 1 Petition for Writ of Habeas of Corpus be Dismissed Without Prejudice; Referred to Judge Dale A. Drozd, signed by Magistrate Judge Stanley A. Boone on 11/18/2019. Objections to F&R due within THIRTY (30) Days. (Orozco, A)

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1 2 3 4 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF CALIFORNIA 7 JOSEPH HASKELL MAINE, 8 Case No. 1:19-cv-00862-DAD-SAB-HC Petitioner, 9 10 v. 11 FRAUENHEIM,1 FINDINGS AND RECOMMENDATION TO GRANT RESPONDENT’S MOTION TO DISMISS ORDER DIRECTING CLERK OF COURT TO AMEND CAPTION Respondent. 12 (ECF No. 13) 13 Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus 14 15 pursuant to 28 U.S.C. § 2254. 16 I. 17 BACKGROUND Petitioner was convicted by a jury in the Kern County Superior Court of two counts of 18 19 second-degree murder (counts 1 and 2), gross vehicular manslaughter while intoxicated (count 20 3), and misdemeanor driving without a valid license (count 6). Petitioner was sentenced to an 21 imprisonment term of: fifteen years to life on count 1; a concurrent fifteen years to life on count 2 22 2; and ten years plus two years on count 3, which was stayed. (LDs 1, 2). On April 13, 2018, the 23 California Court of Appeal, Fifth Appellate District remanded the matter for the trial court to 24 correct a clerical error in the abstract of judgment and in all other respects affirmed the 25 judgment. (LD 2). On May 15, 2018, Petitioner filed a petition for review in the California 26 Supreme Court, which denied the petition on June 20, 2018. (LDs 3, 4). 27 1 28 2 The correct spelling of Respondent’s last name is Frauenheim. (ECF No. 13 at 1 n.1). “LD” refers to the documents lodged by Respondent on August 21, 2019. (ECF No. 14). 1 Petitioner filed a state habeas petition and a petition for resentencing in the Kern County 1 2 Superior Court. Petitioner also filed a notice of appeal in the California Court of Appeal of the 3 denial of his resentencing petition. (ECF No. 13 at 2 n.2).3 Petitioner did not file any state habeas 4 petitions challenging his convictions and sentence in the California Supreme Court. (Id. at 2). On May 7, 2019, Petitioner filed the instant federal petition for writ of habeas corpus. 5 6 (ECF No. 1). In the petition, Petitioner asserts the following claims for relief: (1) ineffective 7 assistance of counsel for failing to excuse a juror who was a family member of the victim; (2) 8 denial of a fair trial because a family member of the victim was on the jury; (3) ineffective 9 assistance of counsel for failing to excuse a juror who knew the victim and the mother who was 10 also in the car at the time of the accident; and (4) denial of a fair trial because a member of the 11 jury knew the victim and the mother. (ECF No. 1 at 3–6). On August 21, 2019, Respondent filed a motion to dismiss the petition as unexhausted. 12 13 (ECF No. 13). To date, Petitioner has not filed any opposition or statement of non-opposition to 14 the motion to dismiss, and the time for doing so has passed. 15 II. 16 DISCUSSION A petitioner in state custody who is proceeding with a petition for writ of habeas corpus 17 18 must exhaust state judicial remedies. 28 U.S.C. § 2254(b)(1). The exhaustion doctrine is based 19 on comity to the state court and gives the state court the initial opportunity to correct the state’s 20 alleged constitutional deprivations. Coleman v. Thompson, 501 U.S. 722, 731 (1991); Rose v. 21 Lundy, 455 U.S. 509, 518 (1982). A petitioner can satisfy the exhaustion requirement by 22 providing the highest state court with a full and fair opportunity to consider each claim before 23 presenting it to the federal court. O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999); Duncan v. 24 Henry, 513 U.S. 364, 365 (1995); Picard v. Connor, 404 U.S. 270, 276 (1971). Respondent has lodged state court records that demonstrate Petitioner only presented two 25 26 instructional error claims in his petition for review filed in the California Supreme Court. (LD 3). 27 Given that Petitioner has not sought relief in the California Supreme Court on any of the claims 28 3 Page numbers refer to the ECF page numbers stamped at the top of the page. 2 1 raised in the instant petition, this Court cannot proceed to the merits of said claims. 28 U.S.C. 2 § 2254(b)(1). 3 III. 4 RECOMMENDATION & ORDER Based on the foregoing, the undersigned HEREBY RECOMMENDS that: 5 6 1. Respondent’s motion to dismiss (ECF No. 13) be GRANTED; and 7 2. The petition for writ of habeas corpus be DISMISSED WITHOUT PREJUDICE for 8 failure to exhaust state judicial remedies. 9 Further, the Clerk of Court is DIRECTED to amend the caption to reflect “Frauenheim” 10 as Respondent. This Findings and Recommendation is submitted to the assigned United States District 11 12 Court Judge, pursuant to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of the Local 13 Rules of Practice for the United States District Court, Eastern District of California. Within 14 THIRTY (30) days after service of the Findings and Recommendation, any party may file 15 written objections with the court and serve a copy on all parties. Such a document should be 16 captioned “Objections to Magistrate Judge’s Findings and Recommendation.” Replies to the 17 objections shall be served and filed within fourteen (14) days after service of the objections. The 18 assigned United States District Court Judge will then review the Magistrate Judge’s ruling 19 pursuant to 28 U.S.C. § 636(b)(1)(C). The parties are advised that failure to file objections within 20 the specified time may waive the right to appeal the District Court’s order. Wilkerson v. 21 Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th 22 Cir. 1991)). 23 24 IT IS SO ORDERED. 25 Dated: November 18, 2019 UNITED STATES MAGISTRATE JUDGE 26 27 28 3

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