Zagsaw v. Davey et al

Filing 14

ORDER vacating 12 FINDINGS AND RECOMMENDATIONS signed by District Judge Lawrence J. O'Neill on 10/30/2015. (Lundstrom, T)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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SALTAN ZAGSAW,

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Petitioner,
v.

Case No. 1:15-cv-00793-LJO-BAM HC
ORDER VACATING FINDINGS AND
RECOMMENDATIONS RECOMMENDING
DISMISSAL OF THE PETITION FOR
FAILURE TO EXHAUST STATE REMEDIES

DAVE DAVEY, Warden of CSP-Corcoran,
Respondent.

(Docs. 11, 12, and 13)

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Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus
pursuant to 28 U.S.C. § 2254, in which he seeks to set aside his validation as a member of the
Northern Structure prison gang, and to secure release from the Security Housing Unit (SHU) and
restoration of early release credits lost as a result of the gang validation. The Court referred the
matter to the Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1) and Local Rules 302 and 304.
On October 13, 2015, the Magistrate Judge filed findings and recommendation in which she
recommended that the Court dismiss the petition because of Petitioner's failure to exhaust state
remedies. The findings and recommendations provided that objections could be served within thirty
days. On October 23, 2015, Petitioner filed objections in which he provided a copy of the October
14, 2015, order of the California Supreme Court denying the petition for review.
Generally, a petitioner must have fully exhausted state remedies at the time he files for
federal habeas relief. 28 U.S.C. § 2254(b); Rose v. Lundy, 455 U.S. 509, 515-20 (1982). A claim is
exhausted once it has been fairly presented to the state's highest court. Schwartzmiller v. Gardner,
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752 F.2d 1341, 1344 (9th Cir. 1984). Exhaustion is not jurisdictional, however, but is a matter of

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federal-state comity. Id. at 1345. As a result, “an appellate court may give relief if state remedies

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are exhausted by the time it acts, even if these remedies were not exhausted when the habeas corpus

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petition was filed.” Id.; Buffalo v. Sunn, 854 F.2d 1158, 1163 (9th Cir. 1988). When the highest state

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court has acted the claim, the barrier to federal habeas consideration of the claim's substantive merits

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is removed, and the federal court may proceed to consider it. Sharpe v. Buchanan, 317 U.S. 238,

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239 (1942).

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Petitioner has now fully exhausted his state court remedies. Accordingly, the Court hereby
VACATES the findings and recommendations filed October 13, 2015. The case is referred to the
Magistrate Judge for further proceedings.

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IT IS SO ORDERED.
Dated:

/s/ Lawrence J. O’Neill

October 30, 2015

UNITED STATES DISTRICT JUDGE
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