1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 RAYMUNDO LOPEZ CASAMIRO, No. 1:24-cv-01400-KES-SKO (HC) 12 Petitioner, FINDINGS AND RECOMMENDATION

TO GRANT RESPONDENT’S MOTION

13 v. TO DISMISS MIXED PETITION 14 [Doc. 12] MARTIN GAMBOA, Warden, 15 [TWENTY-ONE DAY OBJECTION Respondent. DEADLINE] 16

17 18 Petitioner is a state prisoner proceeding pro se and in forma pauperis with a petition for 19 writ of habeas corpus pursuant to 28 U.S.C. § 2254. 20 Petitioner filed the instant habeas petition on November 15, 2024, challenging his 2021 21 conviction in Madera County Superior Court of multiple sex crimes against a thirteen-year-old 22 girl. (Doc. 1.) On March 4, 2025, Respondent filed a motion to dismiss for failure to exhaust state 23 remedies. (Doc. 12.) Petitioner filed an opposition on April 10, 2025. (Doc. 14.) Repondent filed 24 a reply on April 22, 2025. (Doc. 15.) Because the petition is a mixed petition, the Court will 25 recommend Respondent’s motion to dismiss be GRANTED and Petitioner be DIRECTED to 26 amend the petition to delete the unexhausted claims or request dismissal of the petition without 27 prejudice so that Petitioner may return to state court to exhaust his state remedies. 28 ///// 1 DISCUSSION 2 A. Preliminary Review of Petition 3 Rule 4 of the Rules Governing Section 2254 Cases allows a district court to dismiss a 4 petition if it “plainly appears from the petition and any attached exhibits that the petitioner is not 5 entitled to relief in the district court . . . .” Rule 4 of the Rules Governing Section 2254 Cases. 6 The Advisory Committee Notes to Rule 8 indicate that the court may dismiss a petition for writ of 7 habeas corpus, either on its own motion under Rule 4, pursuant to the respondent’s motion to 8 dismiss, or after an answer to the petition has been filed. Herbst v. Cook, 260 F.3d 1039 (9th Cir. 9 2001). 10 B. Exhaustion 11 A petitioner who is in state custody and wishes to collaterally challenge his conviction by 12 a petition for writ of habeas corpus must exhaust state judicial remedies. 28 U.S.C. § 2254(b)(1). 13 The exhaustion doctrine is based on comity to the state court and gives the state court the initial 14 opportunity to correct the state's alleged constitutional deprivations. Coleman v. Thompson, 501 15 U.S. 722, 731 (1991); Rose v. Lundy, 455 U.S. 509, 518 (1982). 16 A petitioner can satisfy the exhaustion requirement by providing the highest state court 17 with a full and fair opportunity to consider each claim before presenting it to the federal court. 18 Duncan v. Henry, 513 U.S. 364, 365 (1995). A federal court will find that the highest state court 19 was given a full and fair opportunity to hear a claim if the petitioner has presented the highest 20 state court with the claim's factual and legal basis. Duncan, 513 U.S. at 365 (legal basis); Kenney 21 v. Tamayo-Reyes, 504 U.S. 1, 112 S.Ct. 1715, 1719 (1992) (factual basis). 22 Additionally, the petitioner must have specifically told the state court that he was raising a 23 federal constitutional claim. Duncan, 513 U.S. at 365-66. In Duncan, the United States Supreme 24 Court reiterated the rule as follows:

25 In Picard v. Connor, 404 U.S. 270, 275 . . . (1971), we said that exhaustion of state remedies requires that petitioners “fairly presen[t]” federal claims to the state courts 26 in order to give the State the “opportunity to pass upon and correct alleged violations of the prisoners' federal rights” (some internal quotation marks omitted). If state 27 courts are to be given the opportunity to correct alleged violations of prisoners' federal rights, they must surely be alerted to the fact that the prisoners are asserting 28 claims under the United States Constitution. If a habeas petitioner wishes to claim 1 that an evidentiary ruling at a state court trial denied him the due process of law guaranteed by the Fourteenth Amendment, he must say so, not only in federal court, 2 but in state court. 3 Duncan, 513 U.S. at 365-366. The Ninth Circuit examined the rule further, stating:

4 Our rule is that a state prisoner has not “fairly presented” (and thus exhausted) his federal claims in state court unless he specifically indicated to that court that those 5 claims were based on federal law. See Shumway v. Payne, 223 F.3d 982, 987-88 (9th Cir. 2000). Since the Supreme Court's decision in Duncan, this court has held 6 that the petitioner must make the federal basis of the claim explicit either by citing federal law or the decisions of federal courts, even if the federal basis is “self- 7 evident," Gatlin v. Madding, 189 F.3d 882, 889 (9th Cir. 1999) (citing Anderson v. Harless, 459 U.S. 4, 7 . . . (1982), or the underlying claim would be decided under 8 state law on the same considerations that would control resolution of the claim on federal grounds. Hiivala v. Wood, 195 F3d 1098, 1106-07 (9th Cir. 1999); Johnson 9 v. Zenon, 88 F.3d 828, 830-31 (9th Cir. 1996); . . . .

10 In Johnson, we explained that the petitioner must alert the state court to the fact that the relevant claim is a federal one without regard to how similar the state and federal 11 standards for reviewing the claim may be or how obvious the violation of federal law is. 12 13 Lyons v. Crawford, 232 F.3d 666, 668-669 (9th Cir. 2000) (italics added), as amended by Lyons 14 v. Crawford, 247 F.3d 904, 904-5 (9th Cir. 2001). 15 Petitioner raises the following three claims in his petition: 1) The prosecutor committed 16 misconduct and violated Petitioner’s due process rights by wrongly telling the jury at the 17 beginning of closing arguments that the presumption of innocence no longer applies; 2) Defense 18 counsel was constitutionally ineffective when the prosecutor committed prejudicial misconduct 19 by misstating the presumption of evidence in closing arguments; and 3) Per new rules of Senate 20 Bill 567, Petitioner’s sentence must be reversed and remanded. (Doc. 1.) 21 Respondent contends that Petitioner failed to fairly present claims two and three to the 22 California Supreme Court and therefore failed to exhaust these claims. Petitioner had one filing in 23 the California Supreme Court, and the petition raised one claim: the prosecutor committed 24 misconduct by misstating the presumption of innocence in closing arguments. (Doc. 13-3.) 25 Petitioner also claimed that, to the extent defense counsel forfeited the claim, defense counsel was 26 ineffective. (Doc. 13-3 at 15.) Petitioner did not raise claim three to the California Supreme Court 27 and therefore it is unexhausted. To the extent Petitioner raises an independent claim of ineffective 28 assistance of counsel, it too is unexhausted. The state court determined that the prosecutor did not 1 commit misconduct and therefore did not consider whether defense counsel was ineffective. 2 (Doc. 13-3 at 9.) On the other hand, if Petitioner is raising a claim of ineffectiveness to excuse 3 forfeiture of the prosecutorial misconduct claim, the claim is moot as the state court did not find 4 the prosecutorial misconduct claim forfeited. 5 The instant petition is therefore a mixed petition containing exhausted and unexhausted 6 claims. Petitioner must be given the option of exhausting the unexhausted claims by returning to 7 state court, or abandoning the claims and pursuing the remaining claims in this Court. Jefferson v. 8 Budge, 419 F.3d 1013, 1016 (9th Cir. 2005); see also Butler v. Long, 752 F.3d 1177, 1191 (9th 9 Cir. 2014). 10 RECOMMENDATION 11 Accordingly, the Court RECOMMENDS that Respondent’s motion to dismiss be granted, 12 and Petitioner be directed to either amend the petition to delete the unexhausted claims or request 13 dismissal of the petition without prejudice so he may return to state court to exhaust the 14 unexhausted claim. 15 This Findings and Recommendation is submitted to the United States District Court Judge 16 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of the 17 Local Rules of Practice for the United States District Court, Eastern District of California. Within 18 twenty-one (21) days after being served with a copy of this Findings and Recommendation, a 19 party may file written objections with the Court and serve a copy on all parties. Id. The document 20 should be captioned, “Objections to Magistrate Judge’s Findings and Recommendation” and shall 21 not exceed fifteen (15) pages, except by leave of court with good cause shown. The Court will not 22 consider exhibits attached to the Objections. To the extent a party wishes to refer to any 23 exhibit(s), the party should reference the exhibit in the record by its CM/ECF document and page 24 number, when possible, or otherwise reference the exhibit with specificity. Any pages filed in 25 excess of the fifteen (15) page limitation may be disregarded by the District Judge when 26 reviewing these Findings and Recommendations pursuant to 28 U.S.C. § 636 (b)(1)(C). The 27 parties are advised that failure to file objections within the specified time may result in the waiver 28 of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014). This 1 recommendation is not an order that is immediately appealable to the Ninth Circuit Court of 2 Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, 3 should not be filed until entry of the District Court's judgment. 4

IT IS SO ORDERED.

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6 Dated: May 2, 2025 /s/ Sheila K. Oberto .

UNITED STATES MAGISTRATE JUDGE

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