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United States District Court

Eastern District of California 

Christopher James,

Petitioner, No. Civ. S 04-1574 FCD PAN P

vs. Findings and Recommendations

J. Solis, Warden,

Respondent.

-oOoJune 3, 2005, the court found petitioner failed to exhaust

one claim presented in his petition for a writ of habeas corpus

and directed petitioner to explain in writing why this action

should be stayed. See Rhines v. Weber, 125 S.Ct. 1528 (2005). 

Petitioner has responded. Respondent states he has no opposition

to petitioner’s concession the court should delete the

unexhausted claim and proceed on the others.

February 3, 2001, petitioner was convicted of attempted 

robbery and assault with a firearm and was sentenced to 13 years 

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in prison. Cal. Pen. Code §§ 211, 245, 664, 667 12022.5. 

Petitioner appealed but was denied relief. Petitioner filed a

petition for review in the California Supreme Court. October 16,

2002, the court denied review.

Petitioner filed a petition for a writ of habeas corpus in

the trial court. May 23, 2003, the court denied relief.

Petitioner sought rehearing in the trial court. July 15,

2003, the court denied the request.

Petitioner filed a petition for a writ of habeas corpus in

the appellate court. August 7, 2003, the court denied the

petition.

September 11, 2003, petitioner filed a petition for a writ

of habeas corpus in the California Supreme Court. The court

denied relief.

Petitioner requests the court to “stay the action of the

Writ of Habeas Corpus, and to delete the [sic] unexhausted claim

and to proceed on with the other claims.”

To the extent petitioner seeks to abey this proceeding while

he exhausts new claims, this court must determine whether

petitioner had good cause for his failure to exhaust, whether

petitioner engaged in intentionally dilatory litigation tactics

and whether the unexhausted claim clearly is meritless. Rhines

v. Weber, 125 S.Ct. 1528 (2005). 

Petitioner asserts he did not realize he failed to exhaust

claim three until after he commenced this action and he has not

intentionally withheld claim three from the state courts in order 

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to delay federal litigation. 

In claim three, petitioner alleges his rights were violated

when, during deliberations and over counsel’s objection, the

trial court admitted into evidence and gave to the jury a taped

statement and transcript of a prosecution witness confessing to

the crimes for which defendant was convicted. The record

discloses neither the full circumstances of the trial court’s

actions nor the entire substance of the witness’s statement. 

Petitioner fails to explain why he overlooked such a claim for

four years. In addition, while if literally true the claim would 

implicate the right of confrontation under the Sixth Amendment,

see Crawford v. Washington, 541 U.S. 36 (2004); Lilly v.

Virginia, 527 U.S. 116 (1999), petitioner has not alleged facts

sufficient to show this to be the case and has not demonstrated

how he was prejudiced by evidence of another’s confession. 

I find petitioner has failed to make the showing required by

Rhines.

For these reasons, respondent’s October 15, 2004, motion to

dismiss should be granted and petitioner’s November 3, 2004,

motion to stay this action while he returns to state court with

his unexhausted claim should be denied and his November 3, 2004,

motion to delete his third claim should be granted so this action

proceeds on only the exhausted claims.

Pursuant to the provisions of 28 U.S.C. § 636(b)(l), these

findings and recommendations are submitted to the United States

District Judge assigned to this case. Written objections may be 

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filed within 20 days of service of these findings and

recommendations. The document should be captioned “Objections to

Magistrate Judge’s Findings and Recommendations.” The district

judge may accept, reject, or modify these findings and

recommendations in whole or in part.

So ordered.

Dated: August 30, 2005. 

 /s/ Peter A. Nowinski 

 PETER A. NOWINSKI

 Magistrate Judge

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