Protsman

Protsman v. Pliler

Good Law

318 F. Supp. 2d 1004·2004 WL 1157774·2004 U.S. Dist. LEXIS 9598

United States District Court, Southern District of CaliforniaApril 13, 20043:02-cv-01601California5,561 words

Opinion

Whelan, J.

ORDER ADOPTING REPORT AND RECOMMENDATION

On August 9, 2002 Petitioner Eugene Protsman (“Petitioner”), a state prisoner proceeding pro se, commenced 28 U.S.C. § 2254 habeas proceedings. On November 20, 2002 Respondent Cheryl K. Pliler (“Respondent”) moved to dismiss the Petition as unexhausted and procedurally barred.

On October 14, 2003 United States Magistrate Judge Louisa S. Porter issued a Report and Recommendation (“Report”), recommending that Respondent’s motion to dismiss Claim One as unexhausted be denied, but that the Court dismiss Claim Two as procedurally barred. On December 30, 2003 Petitioner filed objections to the Report.

The Court decides the matter on the papers submitted and without oral argument. See Civil Local Rule 7.1(d.l). For the reasons outlined below, the Court adopts the Report and DENIES Respondent’s motion to dismiss for failing to exhaust state remedies, and GRANTS Respondent’s motion to dismiss Claim Two as procedurally barred.

I. BACKGROUND

A jury found Petitioner guilty of first degree murder. The jury also found present the special circumstance of robbery and a deadly weapon enhancement. On May 24, 1999 Petitioner received life in prison…

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