1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 BILL RAY MOUNT, 11 Case No. 20-00153 BLF (PR) Petitioner, 12 ORDER GRANTING MOTION TO v. DISMISS; DENYING CERTIFICATE 13 OF APPEALABILITY

14 W. J. SULLIVAN, Warden,

15 Respondent.

16 (Docket No. 9)

17

18 Petitioner, a state prisoner proceeding pro se, filed a petition for a writ of habeas 19 corpus pursuant to

challenging his state conviction.1 Respondent filed a 20 motion to dismiss the petition for failure to exhaust state remedies along with exhibits in 21 support. Dkt. Nos. 9, 9-1, 9-2. Petitioner filed an opposition. Dkt. No. 10. Respondent did not file a reply. For the reasons set forth below, Respondent’s motion to dismiss is 22 GRANTED. 23 I. BACKGROUND 24 Petitioner was convicted in 2016 by a jury in Lake County Superior Court of second 25 degree murder with enhancements for personally discharging a firearm and commission of 26 27 1 the crime for the purpose of furthering criminal gang activity. Exh. 1 at 16.2 The trial 2 court found true a strike prior and a prior serious felony conviction.

In 2017, the court 3 sentenced Petitioner to a total unstayed term of 45 years to life plus 17 years determinate. 4

5 In 2018, Petitioner appealed the conviction to the California Court of Appeal, 6 raising four claims. Exh. 1 at 2-14. On January 28, 2019, the state appellate court struck 7 the 10-year gang enhancement in count 1 and instead imposed a 15-year enhancement.

8 at 16. The court further remanded the case for resentencing on the firearm enhancement. 9

It affirmed the judgment in all other respects.

The California Supreme Court 10 denied review in 2019. Exh. 2. In October 2019, the superior court denied a petition for 11 resentencing. Dkt. No. 9 at 2. 12 Petitioner filed the instant federal habeas action on January 7, 2020. Dkt. No. 1. 13 14 II. DISCUSSION 15 A. Exhaustion 16 Prisoners in state custody who wish to challenge collaterally in federal habeas 17 proceedings either the fact or length of their confinement are first required to exhaust state 18 judicial remedies, either on direct appeal or through collateral proceedings, by presenting 19 the highest state court available with a fair opportunity to rule on the merits of each and 20 every claim they seek to raise in federal court. See

(b)-(c). If available 21 state remedies have not been exhausted as to all claims, the district court must dismiss the 22 petition. Duckworth v. Serrano,

(1981). Before he may challenge either 23 the fact or length of his confinement in a habeas petition in this Court, petitioner must 24 present to the California Supreme Court any claims he wishes to raise in this court. See 25 Rose v. Lundy,

(1982) (holding every claim raised in federal habeas 26 petition must be exhausted). If available state remedies have not been exhausted as to all 27 1 claims, the district court must dismiss the petition.

; Guizar v. Estelle,

371, 372 (9th Cir. 1988). 3 Petitioner raises the following three claims in this action: (1) evidence of a third 4 party shooter, David Cox, should have been more fully presented to the jury, Dkt. No. 1 at 5 5; (2) evidence proving the gang enhancement was wrongfully admitted to show motive at 6 trial,

; and (3) counsel was ineffective for choosing not to present testimony of alibi 7 witnesses,

. Respondent asserts that Petitioner did not exhaust his state judicial 8 remedies for any of the three claims raised in this action because he did not present them to 9 the state’s highest court for review. Dkt. No. 9 at 2, 5. On appeal, Petitioner raised the 10 claims that trial counsel was ineffective for failing to argue that the “Clearlake Skinheads” 11 was not a criminal street gang, and that a four-year consecutive sentence for felon in 12 possession should have been stayed. Dkt. No. 9-1 at 3. As such, Respondent argues that 13 the instant petition must be dismissed for failure to exhaust state judicial remedies.

14 Respondent also notes that in the petition, Petitioner indicates that he filed a new 15 trial motion based on the evidence of a third party shooter, and a motion to “reveal juror 16 identity” in state superior court. Dkt. No. 1 at 3, 4. However, as Respondent asserts, none 17 of the claims raised therein were pursued through the state’s highest court. Nor can it be 18 said that Petitioner’s challenge to his appellate counsel’s performance in failing to raise his 19 innocence claim on appeal was exhausted since he never presented such a claim before the 20 state supreme court.

. 21 In opposition, Petitioner presents no evidence to dispute Respondent’s arguments. 22 Rather, he asserts that his case is the “exception” and that the Court should hold an 23 evidentiary hearing regarding his claims. Dkt. No. 10. However, this Court may only 24 consider an evidentiary hearing to review the state record for claims which are exhausted 25 and properly before the Court, not unexhausted claims. See Brown v. Easter,

1209, 1211 (9th Cir. 1995) (district court correct in only considering state record of claims 27 exhausted on direct appeal and not expanded state record addressing procedurally 1 After reviewing the papers submitted on this matter, the Court finds Petitioner did 2 || not exhaust state judicial remedies with respect to any of the claims raised in the instant 3 || petition. There is no dispute that Petitioner did not present any of the three claims raised 4 || herein to the state high court for a fair opportunity to rule on the merits. See

|| 2254(b)-(c); Duckworth,

. Accordingly, the petition must be dismissed for 6 || failure to exhaust state judicial remedies. See Rose,

. Respondent’s 7 || motion to dismiss must be granted. 8 9 Hl. CONCLUSION 10 For the foregoing reasons, Respondent’s motion to dismiss the petition, Dkt. No. 9, 11 || is GRANTED. See Rose v. Lundy,

. The instant petition for a writ of (12 habeas corpus is DISMISSED for failure to exhaust state judicial remedies. The dismissal 5 13 || iS without prejudice to Petitioner returning to this Court after exhausting available state S 14 || remedies. See Trimble v. City of Santa Rosa,

(9th Cir. 1995). 3 15 No certificate of appealability is warranted in this case. See Rule 11(a) of the Rules 16 || Governing § 2254 Cases, 28 U.S.C. foll. § 2254 (requiring district court to rule on 5 17 || certificate of appealability in same order that denies petition). Petitioner has not shown 18 || “that jurists of reason would find it debatable whether the petition states a valid claim of 19 || the denial of a constitutional right and that jurists of reason would find it debatable 20 || whether the district court was correct in its procedural ruling.” Slack v. McDaniel, 529 21 || U.S. 473, 484 (2000). 2 This order terminates Docket No. 9. 23 IT IS SO ORDERED. 24 || Dated: January 27,2021 feb line hams) BETH LABSON FREEMAN 25 United States District Judge 26 Order Granting Motion to Dismiss; Denying COA P:\PRO-SE\BLF\HC.20\00153Mount_grant-mtd (exh) 27 28