Guerra

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA 6 JUAN M. GUERRA, Case No. 19-cv-07165-HSG

Petitioner, ORDER GRANTING MOTION TO

DISMISS; REQUIRING ELECTION BY

v. PETITIONER

MONTGOMERRY, Re: Dkt. No. 8 Respondent.

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