Andreas Kelly v. Larry Small, Warden

Andreas J. Kelly was convicted in California state court of eight counts of first-degree residential robbery, one count of second-degree robbery, and two counts of kidnapping for robbery with enhancement for the use of a firearm and a knife. He was sentenced to state prison for two consecutive life terms plus an additional twelve years and four months. Petitioner appealed his conviction to the California Court of Appeal, Second Appellate District, Division Seven. In an unpublished opinion filed April 6, 1998, the Court of Appeals affirmed the judgment. In an order filed July 22, 1998, the California Supreme Court denied review. Kelly thereafter filed, under 28 U.S.C. § 2254 , a petition for writ of habeas corpus in the United States District Court for the Central District of California. The state moved for summary dismissal on the ground that Petitioner had not exhausted his available state remedies. The case was assigned to a magistrate judge. The magistrate judge found that Petitioner had not exhausted five of his eight claims and that he could submit an amended petition deleting the unexhausted claims, but that his failure to do so would result in the dismissal of his…