1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 JACOB DANIEL HEIM, Case No.: 24-cv-2476-AJB-DEB

11 Petitioner, REPORT AND 12 v. RECOMMENDATION TO DENY PETITIONER’S MOTIONS TO 13 M. GAMBOA, Warden, et al., STAY AND RESUME PETITION 14 Respondents. [DKT. NOS. 4, 6] 15 16 This Report and Recommendation is submitted to United States District Judge 17 Anthony J. Battaglia pursuant to

(b) and Civil Local Rule 72.1.d and Civil 18 Habeas Corpus Rule 2. 19 I. INTRODUCTION 20 Petitioner Jacob Daniel Heim (“Petitioner” or “Heim”), a state prisoner proceeding 21 pro se, has filed a Petition for Writ of Habeas Corpus pursuant to

22 challenging his San Diego County Superior Court conviction. Dkt. No. 1. 23 On January 8, 2025, the Court notified Heim that, to avoid dismissal of his Petition 24 based on a failure to exhaust his habeas claims in state court, he must either: 25 (1) demonstrate he had exhausted claims in his Petition; (2) voluntarily dismiss his case, 26 return to state court to exhaust his claims, and refile exhausted claims; or (3) move to stay 27 28 1 this case while he returns to state court to exhaust his unexhausted claims. Dkt. No. 3. 2 On January 21, 2025, Heim chose option three and moved to stay this federal action 3 while he presented his sixteen claims in state court. Dkt. No. 4 (“Motion to Stay”). Less 4 than two weeks later, Heim filed a Motion to Resume his federal habeas Petition, stating 5 the California Supreme Court “denied my petition with my sixteen grounds for relief and 6 returned my petition unfiled.” Dkt. No. 6 at 1. Alternatively, Heim seeks a further stay if 7 the Court finds he has not exhausted his state remedies. Dkt. No. 12 at 12. 8 The Court has reviewed the Motion to Stay and Motion to Resume, Respondents’ 9 Opposition to both motions (Dkt. Nos. 8, 11), Heim’s Reply (Dkt. No. 12), and all 10 supporting documents. For the reasons discussed below, the Court RECOMMENDS 11 DENYING Petitioner’s Motions and DISMISSING the Petition. 12 II. PROCEDURAL BACKGROUND 13 On July 22, 2022, the San Diego County Superior Court sentenced Heim to fourteen 14 years in state prison on multiple counts of committing a lewd act on a child under fourteen 15 years old in violation of California Penal Code Section 288(a). Dkt. No. 1 at 1–2.2 Heim 16 represented himself at trial. On direct appeal, represented by counsel, Heim argued the trial 17 court should not have permitted self-representation because, although he was competent to 18 stand trial, he was not competent to represent himself. Dkt. No. 4 at 24–45. The California 19 Court of Appeal rejected Heim’s claims and affirmed the judgment. Dkt. No. 4 at 9–23. 20 The California Supreme Court summarily denied review. Dkt. No. 1-8 at 33. 21

22 1 Heim’s December 2024 Petition for Writ of Habeas Corpus conceded he had not 23 previously raised any of his sixteen claims in state court. Dkt. No. 1 at 6–24.

24 2 The record does not contain Heim’s judgment. The unpublished opinion denying his state 25 court appeal, which Heim attaches to his Motion to Stay, states the jury found him guilty of six counts of committing lewd acts on a child under the age of fourteen and one count 26 of exhibiting to a minor harmful material depicting sexual conduct of a minor, along with 27 two aggravating circumstances per count. Dkt. No. 4 at 9–23. Heim asserts he was convicted of “5 counts of 288(a).” Dkt. No. 1 at 2. Because the precise convictions are not 28 1 Heim then filed a Petition for Writ of Habeas Corpus in this Court. Dkt. No. 1. 2 Because it appeared Heim had not exhausted his state court remedies, this Court issued an 3 order requiring Heim to either: (1) demonstrate he had exhausted the claims in his Petition; 4 (2) voluntarily dismiss his case, return to state court to exhaust his claims, and refile the 5 exhausted claims; or (3) move to stay this proceeding while he returns to state court to 6 exhaust his unexhausted claims. Dkt. No. 3. Heim elected to move to stay this case while 7 he presented his claims to the state court. Dkt. No. 4. 8 Heim then filed a “Petition for Review” with the California Supreme Court. 9 Dkt. No. 6 at 3–4. The California Supreme Court returned Heim’s filing, explaining it had 10 already considered and denied Heim’s Petition for Review.

. Heim has now returned 11 to this Court claiming he exhausted his state remedies and seeking to resume his Petition. 12

13 III. EXHAUSTION 14 As described above, Heim moved to stay this case while he exhausted his claims in 15 state court. See Rhines v. Weber,

, 276–78 (2005).3 Shortly after he moved to 16 stay, however, he claimed his exhaustion was complete and asked the Court to resume 17 review of his habeas petition. Dkt. No. 6. Accordingly, the Court first considers whether 18 Heim has satisfied the exhaustion requirement. 19 To exhaust state judicial remedies, a petitioner must either fairly present each claim 20 to the state and have it disposed of on the merits or demonstrate that no state remedy 21 remains available. Rose v. Lundy,

, 518–22 (1982); Johnson v. Zenon,

828, 829 (9th Cir. 1996) (citation omitted). A claim is fairly presented if the petitioner has 23 24

25 26 3 Under Rhines, a district court has discretion to stay a petition to allow a petitioner time to present his unexhausted claims to state courts. Rhines,

; see also Mena v. 27 Long,

(9th Cir. 2016) (holding the Rhines stay-and-abeyance procedure applies to both mixed and fully unexhausted habeas petitions). 28 1 described “in state proceedings both the operative facts and federal legal theory on which 2 his claim is based.” Davis v. Silva,

(9th Cir. 2008) (citation modified). 3 Heim presents evidence showing he attempted to exhaust his sixteen claims in the 4 California Supreme Court by filing a “Petition for Review” on January 21, 2025. Dkt. No. 5 6. The California Supreme Court returned his petition for review to Heim the same day as 6 “unfiled,” stating the Court’s “order denying [his] petition was final forthwith and may not 7 be reconsidered or reinstated.” Dkt. No. 6 at 2.4 8 It appears the California Supreme Court rejected Heim’s submission because he 9 labeled it a “Petition for Review” and not a Petition for Writ of Habeas Corpus. Dkt. No. 10 6 at 3–4. The California Supreme Court, therefore, refused to file Heim’s submission 11 because it regarded it as a second Petition for Review. As a result, it remains the case that 12 no state court has considered the claims Heim has presented to this Court. Castille v. 13 Peoples,

(1989) (A petitioner has not fairly presented a federal claim to 14 a state court if the claim is presented in a “procedural context in which its merits will not 15 be considered.”). The Court, therefore, recommends denying Heim’s Motion to Resume. 16 IV. STAY AND ABEYANCE 17 Absent a stay, the Court must dismiss Heim’s Petition. Rasberry v. Garcia,

1150, 1154 (9th Cir. 2006) (“Once a district court determines that a habeas petition contains 19 only unexhausted claims, it need not inquire further as to the petitioner’s intentions. 20 Instead, it may simply dismiss the habeas petition for failure to exhaust.”). 21 22

23 4 The California Supreme Court’s letter to Heim referenced its November 21, 2023 denial 24 of Heim’s petition for review in case no. S282069, wherein Heim appealed the Court of 25 Appeal’s September 13, 2023 denial of his claim that the trial court erred by allowing him to represent himself (Court of Appeal No. D080735). Dkt. No. 4 at 9–23. Heim’s reply to 26 the motions currently before the Court state that he raised the sixteen claims for relief at 27 his July 22, 2022 sentencing, but was advised he could argue those grounds on direct appeal. Dkt. No. 12 at 1. However, he was required to obtain counsel, who advised him 28 1 A “stay and abeyance should be available only in limited circumstances.” Rhines, 2

; Wooten v. Kirkland,

(9th Cir. 2008) (recognizing 3 that routinely granting stays would undermine the goals of 28 U.S.C § 2254). To obtain a 4 stay of a petition containing unexhausted claims, a petitioner must show: (1) “good cause” 5 for the failure to exhaust state-court remedies; (2) the “unexhausted claims are potentially 6 meritorious[;]” and (3) the absence of dilatory tactics. Rhines, 544 U.S. at 277–78; see 7 Mena,

(“[A] district court has the discretion to stay and hold in abeyance 8 fully unexhausted petitions under the circumstances set forth in Rhines.”). 9 A. Good Cause 10 The “good cause” requirement “ensures that a stay and abeyance is available only to 11 those petitioners who have a legitimate reason for failing to exhaust a claim in state court.” 12 Blake v. Baker,

(9th Cir. 2014). Good cause turns on whether the 13 petitioner can set forth a “reasonable excuse, supported by sufficient evidence, to justify 14 that failure.”

“[U]nspecific, unsupported excuses for failing to exhaust—such as 15 unjustified ignorance—d[o] not satisfy the good cause requirement.”

. A 16 petitioner need not show, however, that “extraordinary circumstances” prohibited him from 17 exhausting his claims in the state courts. Jackson v. Roe,

, 661–62 (9th Cir. 18 2005). Good cause for petitioners who were unrepresented during state post-conviction 19 proceedings, “can easily be established to the extent they were without counsel.” Dixon v. 20 Baker,

(9th Cir. 2017). 21 Petitioner asserts that he has “argued [his] case and all grounds for relief to all 22 courts,” and “attempted to consistently argue [his] grounds for relief in ALL [sic] three of 23 the state courts without pause.” Dkt. No. 12 at 2. He explains he has provided the Court 24 with evidence of the state petition he attempted to file, and the California Supreme Court’s 25 letter rejecting it. Id. at 4. He further states, “it is abundantly clear that I have exhausted 26 every court (all three) to a degree, but am happy to appease further exhaustion.” Id. at 3. 27 The Court finds Heim’s effort to exhaust his remedies in the California Supreme 28 Court establishes good cause. Although Heim failed in having his claims heard on the 1 merits, he made a good faith effort to exhaust by presenting his claims to the California 2 Supreme Court in a “Petition for Review.” The Court, therefore, finds Heim has 3 demonstrated good cause. See Dixon,

(“A petitioner who is without 4 counsel in state postconviction proceedings cannot be expected to understand the technical 5 requirements of exhaustion and should not be denied the opportunity to exhaust a 6 potentially meritorious claim simply because he lacked counsel.”). 7 B. Potential Merit 8 The merit requirement is satisfied when a petitioner presents a “colorable or 9 potentially meritorious” claim. Gonzalez v. Wong,

(9th Cir. 2011). A 10 petitioner need only show that one of his unexhausted claims is not “plainly meritless” to 11 obtain a stay. Rhines,

. In determining whether a claim is “plainly 12 meritless,” principles of comity and federalism demand that the federal court refrain from 13 ruling on the merits of the claim unless “it is perfectly clear that the petitioner has no hope 14 of prevailing.” Dixon,

(quoting Cassett v. Stewart,

(9th 15 Cir. 2005)). “A contrary rule would deprive state courts of the opportunity to address a 16 colorable federal claim in the first instance and grant relief if they believe it is warranted.” 17

(citation modified). 18 The Court has reviewed each of Heim’s claims and, as explained below, finds them 19 plainly without merit. 20 Heim’s first claim asserts the State violated his Fifth Amendment right to a grand 21 jury. Dkt. No. 1 at 6. The right to a grand jury, however, does not apply to states. Alexander 22 v. Louisiana,

(1972) (“[T]he Court has never held that federal concepts 23 of a ‘grand jury,’ binding on the federal courts under the Fifth Amendment, are obligatory 24 for the States.”). This claim, therefore, plainly lacks merit. Stumpf v. Alaska,

(9th Cir. 2003) (“Because the right to a grand jury has not been applied to the states 26 via the Fourteenth Amendment, Stumpf’s Fifth Amendment challenge to the grand jury 27 proceedings does not raise a question of federal law and is not cognizable on habeas 28 review.”) (citation modified). 1 Next, Heim argues the State violated his Sixth Amendment right to assistance of 2 counsel by denying his request for representation by a non-lawyer (whom he identified as 3 Public Minister Thomas Beason). Dkt. No. 1 at 7. “[T]he Sixth Amendment guarantees a 4 defendant the right to be represented by an otherwise qualified attorney…who is willing to 5 represent the defendant.” Caplin & Drysdale, Chartered v. United States,

, 6 624 (1989). Heim’s chosen representative was not a “qualified attorney.” This claim, 7 therefore, also plainly lacks merit. 8 Heim’s third claim alleges the police violated his Fifth Amendment right against 9 self-incrimination by facilitating a “pretext phone call” with the victim’s mother. Dkt. No. 10 1 at 8; Dkt. No. 12 at 6. Heim does not allege he was in custody at the time of the call, and 11 the record is clear he was not. See, e.g., Dkt. No. 1-4 at 24 (text messages from Heim 12 contemporaneous with the pretext phone call at issue); Dkt. No. 1 at 6, 8 (Heim’s allegation 13 that the police obtained and executed an arrest warrant after the pretext call at issue). The 14 Fifth Amendment right against self-incrimination, however, applies only when “a person 15 in custody is subjected to either express questioning or its functional equivalent.” Rhode 16 Island v. Innis,

, 300–01 (1980) (emphasis added). 17 Additionally, “Miranda warnings are not required when the suspect is unaware that 18 he is speaking to a law enforcement officer and gives a voluntary statement.” Illinois v. 19 Perkins,

, 294–97 (1990) (“There is no empirical basis for the assumption that 20 a suspect speaking to those whom he assumes are not officers will feel compelled to speak 21 by the fear of reprisal for remaining silent or in the hope of more lenient treatment should 22 he confess.”). Heim’s Petition expressly states he believed the phone call “was a private 23 conversation between just the two of us.” Dkt. No. 1 at 8. Heim’s third claim, therefore, is 24 plainly without merit. 25 Heim’s fourth claim alleges the state trial court violated his First Amendment right 26 to petition the government for a redress of grievances by prohibiting him from referencing 27 possible punishment in front of the jury. Dkt. No. 1 at 9. This does not state a cognizable 28 federal constitutional claim. United States v. Frank,

(9th Cir. 1991) (“It 1 has long been the law that it is inappropriate for a jury to consider or be informed of the 2 consequences of their verdict.”). 3 In his fifth claim, Heim contends it was unconstitutional for the trial court to instruct 4 the jury that it could base its verdict on the victim’s testimony alone. Dkt. No. 1 at 10. This 5 also fails to state a federal constitutional claim. See United States v. Katakis,

1017, 1028 (9th Cir. 2015) (“the uncorroborated testimony of a single witness may be 7 sufficient to sustain a conviction”) (citation modified); Bruce v. Terhune,

, 8 957–58 (9th Cir. 2004) (“[A] rational trier of fact could have found the essential elements 9 of the crime beyond a reasonable doubt[,]” based solely on a molestation victim’s 10 testimony.). 11 Heim’s sixth claim states that he withdrew consent for a search of his phone that 12 uncovered evidence used against him at trial. Dkt. No. 1 at 11. Heim concedes that he 13 consented to officers searching his cell phone on May 3, 2021, the day he was arrested. Id.; 14 see also Dkt. No. 1-4 at 53 (“I know she got authorization.”). However, during trial, Heim 15 argued he had a right to withdraw his consent before the prosecution introduced evidence 16 from the phone at trial. Dkt. No. 1-4 at 54–55. The Superior Court allowed Heim to cross- 17 examine the detective involved in his case. See

The detective testified that Heim 18 consented to the search of his phone, and that he did not withdraw his consent any time 19 prior to the search. Id. at 56. Heim now argues his right to withdraw consent extended 20 through his trial. Dkt. No. 1 at 11 (“Common sense would say I should have been able to 21 take back consent at [trial,] and the phone evidence should not have been submitted as 22 evidence per agreement to what I signed. [The judge] allowing it breaks the contract and is 23 unconstitutional.”). Id. Heim had a full and fair opportunity to litigate that Fourth 24 Amendment claim before the Superior Court; therefore, he is not entitled to habeas relief 25 on the ground that he withdrew his consent at trial, more than one year after detectives 26 seized evidence from his cell phone. See Stone v. Powell,

(1976) 27 (“[W]here the State has provided an opportunity for full and fair litigation of a Fourth 28 Amendment claim, the Constitution does not require that a state prisoner be granted federal 1 habeas corpus relief on the ground that evidence obtained in an unconstitutional search or 2 seizure was introduced at his trial.”); see also Newman v. Wengler,

, 878–79 3 (9th Cir. 2015) (The habeas petitioner’s Fourth Amendment claim is barred by the Stone 4 doctrine “if the petitioner had a full and fair opportunity to litigate [the claim]” in state 5 court). 6 Heim’s seventh claim contends the state court violated his constitutional rights by 7 “acting” as an Article III court. Dkt. No. 1 at 12. He claims only Article III courts can 8 process a criminal proceeding without “color of law tactics and without contract or 9 consent.”

This claim plainly lacks merit. See, e.g., Heath v. Alabama,

, 89 10 (1985) (“[T]he Court has uniformly held that the States are separate sovereigns with respect 11 to the Federal Government because each State’s power to prosecute is derived from its own 12 ‘inherent sovereignty,’ not from the Federal Government.”); Strand v. Schmittroth, 251

(9th Cir. 1957) (“The consent of the accused is of no consequence. His 14 acquiescence, approval or resistance cannot affect the choice of the forum.”). 15 In claim eight, Heim alleges the state court violated the Uniform Commercial Code. 16 Dkt. No. 1 at 13–14. Heim further asserts he read into the record a statement that he had 17 not consented to contract with the government (i.e., he was reserving his rights under UCC 18 1-308) because “all crimes are technically commercial today as the sovereign criminal 19 courts after the 1940s lost that status when they decided to incorporate.” Id. at 14. This 20 statutory claim is not cognizable on habeas review. See

(a) (habeas relief 21 for state prisoners is available “only on the ground that [the petitioner] is in custody in 22 violation of the Constitution or laws or treaties of the United States.”). 23 In his ninth claim, Heim complains that the prosecution failed to dismiss the case 24 upon receipt of a document demanding a response to the assertion that the state penal code 25 is unenforceable copyrighted corporate code. Dkt. No. 1 at 15–16. Heim asserts the 26 Superior Court is registered “as a corporation with Dunn & Bradstreet (as an acting studio), 27 making a profit and financial gain off of me (my legal fiction).”

. He states the 28 judge told him that a jurisdictional challenge is only allowed in civil matters, and then he 1 contends this is a civil matter because the government is incorporated and became a private 2 party.

Heim cites a 1942 Supreme Court decision about “private commercial paper . . . 3 used by corporate government” rendering the court a “mere private corporation.”

This 4 argument also plainly lacks merit for the same reasons as claims seven and eight. 5 In claim ten, Heim asserts the San Diego Superior Court violated his Sixth 6 Amendment rights “by failing to explain the nature and cause against [him] and moved 7 forward without [his] understanding of the charges.” Dkt. No. 1 at 17. Heim explains his 8 failure to understand 9 was not [with] the letter of the law, but why the court was authorized to prosecute. . . . [The Superior Court Judge] never allowed me to understand the 10 charges in how the court was operating in Admiralty Jurisdiction. The 11 Superior Court has denied that it operates under Admiralty, but calls it Statutory Jurisdiction. In reality, it combines common law, equity, and 12 admiralty all in one. It was created very carefully and intentionally to deceive 13 so that very few people would detect or understand how the courts operate. That is fraud. 14

15 Dkt. No. 12 at 9–10; see also Dkt. No. 1 at (“I said [the duty to explain] was not the letter 16 of the law, but why the court was authorized to prosecute.”). 17 As with claim seven, this is not a viable claim. See Wright v. Angelone,

, 157–59 (4th Cir. 1998) (petitioner’s claim that state trial court lacked subject matter 19 jurisdiction was “not cognizable on federal habeas review” because it “rest[ed] solely upon 20 an interpretation of [the state’s] case law and statutes”). Heim’s related “sovereign citizen” 21 argument (Dkt. No. 1-4 at 2–3, 5–8) also plainly lacks merit.5 See United States v. Studley, 22 23 5 To support claim ten, Heim cites, in part, his statement at the January 10, 2022 state court 24 proceeding, as follows:

25 I have not willingly, intentionally, knowingly, or voluntarily made myself 26 subject to the colorable law jurisdiction of the United States, and I am not willing to move forward or make further appearance in this or any equity, 27 admiralty, maritime, also known as statutory jurisdiction court, and doing so 28 would violate my rights as a sovereign after reserving my right for UCC 1- 1

, 937 n.3 (9th Cir. 1986) (the sovereign citizen argument is “utterly meritless” 2 and “consistently and thoroughly rejected by every branch of the government for 3 decades”). 4 In claim eleven, Heim alleges the trial court violated the Eighth Amendment by 5 “doubling [his] sentence because [his case] went to trial.” Dkt. No. 1 at 18. “[T]he Eighth 6 Amendment does not require strict proportionality between crime and sentence, but rather 7 forbids only extreme sentences that are grossly disproportionate to the crime.” Harmelin v. 8 Michigan,

(1991). Heim is serving fourteen years for committing 9 multiple lewd acts on a child under fourteen years old. Dkt. No. 8 at 1. As the Ninth Circuit 10 has observed, “[w]e are aware of no case in which a court has found a defendant’s term- 11 of-years sentence for a non-homicide crime against a person to be grossly disproportionate 12 to his or her crime.” Norris v. Morgan,

(9th Cir. 2010) (holding 13 that a life sentence without the possibility of parole was not grossly disproportionate to 14 defendant’s serious sex offense) (emphasis in original). Heim’s claim that a fourteen-year 15 sentence is “grossly disproportionate” for the crime of committing multiple lewd acts on a 16 child plainly lacks merit. See, e.g.,

(a) (fifteen-year maximum sentence 17

18 308, advising no consent to move forward and having not signed a contract 19 voluntarily, knowingly to do so. I am a national of the republic of California, native-born person, not affected by the territory or jurisdiction of the federal 20 corporate government; state, local, or federal, unless voluntarily via contract 21 or agreement, which prevents false presumption of being under any administrative court’s jurisdiction. As a declared sovereign, nonresident alien, 22 currently in San Diego, any contract that may be Superior Court of the State 23 of California imposed concerning me currently is so under color of law and false presumptions and must be under threat, duress, coercion, deceit, and 24 manipulation, and must be conducted ambiguously. This includes but is not 25 limited to the San Diego Police and private investigations department; San Diego Sheriff Department; San Diego Superior Court; and any and all other 26 federal entities and/or corporations within the United States or any other 27 territory states within the jurisdiction thereof.

28 1 for engaging in a sexual act with a minor between twelve and sixteen years old); 18 U.S.C. 2 § 2251(e) (fifteen to thirty-year minimum mandatory sentences for certain other sex crimes 3 against minors). 4 In claim twelve, Heim contends the state court violated the Eleventh Amendment 5 “by having foreign citizens invoking the judicial powers of the state against me.” Dkt. No. 6 1 at 19. He asserts that “no government, as well as any law, agency, aspect, court, etc. can 7 concern itself with anything other than corporate, artificial persons and the contracts 8 between them.” Id. He further states that “attorneys are considered foreign agents under 9 the Foreign Agents Registration Act (FARA) and are subjects of the BAR Association.” 10 Id. Heim offers no comprehensible authority for this proposition, and the Court finds this 11 claim plainly without merit for the same reasons as Heim’s other jurisdictional and 12 sovereign citizen claims. 13 In claim thirteen, Heim alleges the prosecutor used a title of nobility (“esquire”) in 14 violation of the Thirteenth Amendment. Dkt. No. 1 at 20. The Thirteenth Amendment says 15 nothing of nobility title; it proscribes slavery and involuntary servitude “except as a 16 punishment for crime.” U.S. CONST. amend. XIII. This claim is wholly without merit. 17 In claim fourteen, Heim claims the state court violated the state constitution because 18 the “San Diego Superior Court is an admiralty (statutory) court using statutes and codes in 19 a conspiracy to deprive [him] of [his] Constitutional rights.” Dkt. No. 1 at 21. This state 20 constitutional claim is not cognizable. See Estelle v. McGuire,

(1991) 21 (“federal habeas corpus relief does not lie for errors of state law”) (quoting Lewis v. Jeffers, 22

(1990)); Langford v. Day,

(9th Cir. 2007) (a 23 petitioner cannot “transform a state law issue into a federal issue merely by asserting a 24 violation of due process.”). 25 In claim fifteen, Heim asserts that the prosecution “concealed evidence to obstruct 26 justice in an attempt to violate my rights intentionally . . . . [in violation] of [18 U.S.C. 27 28 1 § 2071].” Dkt. No. 1 at 22–23. He claims he sent a fifty-one-page jurisdictional challenge 2 and a twenty-page motion for default judgment to the prosecutor, but the district attorney 3 only “presented 30 pages total to the court in pretrial motions[.]” Id. at 22. Heim explains 4 that he sought “[a] default judgment against the DA and her office even though the San 5 Diego Superior Court is a commercial incorporated court registered under Dunn & 6 Bradstreet as an ‘acting studio’ business.” Id. He further explains the Superior Court 7 advised him that default judgment only applies in civil cases. Id. As with claims seven, 8 nine, and ten, Heim’s challenge to the state court’s jurisdiction plainly lacks merit. 9 Further, where the alleged “error is neither jurisdictional nor constitutional, the 10 appropriate inquiry is whether the error is ‘a fundamental defect which inherently results 11 in a complete miscarriage of justice,’ or ‘an omission inconsistent with the rudimentary 12 demands of fair procedure,’ and whether the error ‘present[s] exceptional circumstances 13 where the need for the remedy afforded by the writ of habeas corpus is apparent.’” Lord v. 14 Lambert,

(9th Cir. 2003) (citing Hill v. United States,

, 15

16 6 Section 2071 provides: 17 (a) Whoever willfully and unlawfully conceals, removes, mutilates, 18 obliterates, or destroys, or attempts to do so, or, with intent to do so takes and 19 carries away any record, proceeding, map, book, paper, document, or other thing, filed or deposited with any clerk or officer of any court of the United 20 States, or in any public office, or with any judicial or public officer of the 21 United States, shall be fined under this title or imprisoned not more than three years, or both; (b) Whoever, having the custody of any such record, 22 proceeding, map, book, document, paper, or other thing, willfully and 23 unlawfully conceals, removes, mutilates, obliterates, falsifies, or destroys the same, shall be fined under this title or imprisoned not more than three years, 24 or both; and shall forfeit his office and be disqualified from holding any office 25 under the United States. As used in this subsection, the term “office” does not include the office held by any person as a retired officer of the Armed Forces 26 of the United States. 27

. 28 1 428 (1962)). Heim’s fifteenth claim plainly does not meet this high standard. 2 In claim sixteen, Heim asserts his appellate counsel was ineffective for failing to 3 raise what are now claims one through fifteen. Dkt. No. 1 at 24. He represents his counsel 4 told him the claims “lacked any basis in the law.”

For the reasons discussed above, 5 however, the Court agrees with his counsel’s alleged assessment that Heim’s claims are 6 plainly without merit. 7 C. Dilatory Litigation Tactics 8 “[I]f a petitioner engages in abusive litigation tactics or intentional delay, the district 9 court should not grant him a stay at all.” Rhines,

. Here, however, there is 10 no basis to find that Heim has engaged in any abusive litigation tactics or intentional delay. 11 He, therefore, satisfies the final prong of the Rhines test. 12 Because Heim fails to show that any one of his sixteen claims is potentially 13 meritorious, however, the Court recommends dismissal of Heim’s Petition with prejudice. 14 V. CONCLUSION 15 Based on the foregoing, IT IS RECOMMENDED that the Court: (1) DENY Heim’s 16 Motion to Resume (Dkt. No. 6) because he has not exhausted state remedies on any of his 17 sixteen claims; and (2) DENY Petitioner’s Motion to Stay (Dkt. No. 4) because his claims 18 are plainly without merit. 19 IT IS HEREBY ORDERED that on or before August 12, 2025, any party to this 20 action may file and serve written objections to this Report and Recommendation. The 21 document should be captioned “Objection to Report and Recommendation.” 22 // 23 // 24 // 25 // 26 // 27 // 28 // 1 IT IS FURTHER ORDERED that any reply to objections shall be filed and served 2 || within seven (7) days of the filing of the objections. The parties are advised that failure to 3 || file objections within the specified time may waive the right to raise those objections on 4 || appeal of this Court order. Martinez v. Yist,

(9th Cir. 1991). 5 IT IS SO ORDERED. © |lDated: July 29, 2025 ~ 7 wale Srolon g Daniel E. Butcher 9 United States Magistrate Judge

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