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8 UNITED STATES DISTRICT COURT
9 FOR THE EASTERN DISTRICT OF CALIFORNIA
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11 RICO LYNTICE RILEY, No. 2: 18-cv-3050 KJN P
12 Petitioner,
13 v. ORDER
14 JARED D. LAZANO,
15 Respondent.
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17 Petitioner is state prisoner, proceeding without counsel, with a petition for writ of habeas
18 corpus pursuant to 28 U.S.C. § 2254. Petitioner raises four claims for relief: 1) Batson1 error;
19 2) unavailability of jury questionnaires renders review of Batson claim unfair; 3) ineffective
20 assistance of trial counsel; and 4) ineffective assistance of appellate counsel. Petitioner exhausted
21 claims one and two. In the petition, petitioner alleged that claims three and four were pending in
22 a habeas corpus petition filed in the Sacramento County Superior Court.
23 Pending before the court is petitioner’s May 15, 2019 motion to stay this action pending
24 exhaustion of his unexhausted claims. (ECF No. 9.) On October 9, 2019, petitioner filed a letter
25 with the court alleging that he sent a habeas corpus petition to the California Supreme Court
26 raising his unexhausted ineffective assistance of trial and appellate counsel claims. (ECF No. 12.)
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28 1 Batson v. Kentucky, 476 U.S. 79 (1986).
1 | Petitioner alleges that the California Supreme Court returned the petition, unfiled. id.) Attached
2 | to petitioner’s October 9, 2019 letter is a letter addressed to petitioner from the Clerk of the
3 | California Supreme Court dated September 26, 2019. (Id. at 2.) The letter states,
4 Returned unfiled is your petition for review received September 26,
2019. The order of this court filed on November 29, 2017, denying
5 the above-referenced petition, was final forthwith and may not be
considered or reinstated. Please rest assured, however, that the entire
6 court considered the petition for review and the contentions made
7 therein, and the denial expresses the court’s decision in this matter.
8 | Ud.)
9 Attached to petitioner’s October 9, 2019 letter is a copy of the November 29, 2017 order
10 | by the California Supreme Court denying his petition for review. (Id. at 3.) The petition for
11 || review raised petitioner’s exhausted claims alleging Batson error and the unavailability of jury
12 || questionnaires renders review of Batson claim unfair. (ECF No. 1 at 2.)
13 It appears that petitioner mistakenly sent his petition for review to the California Supreme
14 | Court. In other words, petitioner did not file a habeas corpus petition in the California Supreme
15 | Court raising his unexhausted ineffective assistance of trial and appellate counsel claims.
16 | Therefore, petitioner’s ineffective assistance of trial and appellate counsel claims are not
17 | exhausted. In order to exhaust these claims, petitioner must file a habeas corpus petition in the
18 | California Supreme Court raising these claims.
19 Accordingly, IT IS HEREBY ORDERED that:
20 1. Petitioner has not demonstrated proof of exhaustion of his unexhausted claims;
21 2. Petitioner’s motion to stay this action is still pending before the court.
22 | Dated: October 17, 2019
23 Al 7 Norra
24 KENDALL J. Wan
UNITED STATES MAGISTRATE JUDGE
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