Ricardo Garcia v. Montgomery

I.

INTRODUCTION

Petitioner, Ricardo Garcia (“Petitioner”), proceeding pro se, has filed a Petition for Writ of Habeas Corpus (“Petition”) pursuant to 28 U.S.C. § 2254 challenging his 2018 conviction. ECF Docket No. (“Dkt.”) 1 at 2. Respondent filed a Motion to Dismiss contending Petitioner failed to exhaust state remedies for the second claim. Dkt. 11 at 4–8. The second claim appears subject to dismissal because it is unexhausted. The Court will not make a final determination regarding whether the claim should be dismissed, however, without giving Petitioner an opportunity to request a stay or file an amended petition.

II.

PROCEDURAL HISTORY

A. STATE COURT PROCEEDINGS

In 2018, in Los Angeles County Superior Court, a jury convicted Petitioner of second degree murder (Cal. Penal Code § 187(a)) and found true the related gang allegation (Cal. Penal Code § 186.22(b)(1)).1). Dkt. 1 at 2; Dkts. 12-21 at 7; 12-3 at 2–3. Petitioner admitted serving two prior prison terms (Cal. Penal Code § 667.5(b)). Dkt. 12-2 at 80. He was sentenced to state prison as

1 The Court’s citations to Lodged Documents refer to documents lodged in support of Respondent’s May 3, 2022 Motion to…