Guerra

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 JUAN M. GUERRA, Case No. 19-cv-07165-HSG

8 Petitioner, ORDER GRANTING MOTION TO

DISMISS; REQUIRING ELECTION BY

9 v. PETITIONER

10 MONTGOMERRY, Re: Dkt. No. 8 11 Respondent.

12 13 Petitioner, an inmate at Santa Clara County Jail, filed this pro se action seeking a writ of 14 habeas corpus pursuant to 28 U.S.C. § 2254. Now pending before the Court is respondent’s 15 motion to dismiss the petition. Dkt. No. 8. Petitioner has not filed an opposition,1 and the 16 deadline to do so has since passed. Dkt. No. 12. For the reasons set forth below, respondent’s 17 motion is GRANTED and petitioner is required to make an election. 18 DISCUSSION 19 A. Procedural History 20 Petitioner was tried with co-defendant Jose Paulino Cortes. Both petitioner and Cortes 21 were found guilty by a Santa Clara County jury of first degree murder (Cal. Penal Code § 187(a)), 22 attempted first degree murder (Cal. Penal Code § 664(a)),…