Beltran v. On Habeas Corpus
Filing
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ORDER Withdrawing 6 FINDINGS and RECOMMENDATIONS Recommending Dismissal of 1 Petition for Failure to Exhaust State Remedies, signed by Magistrate Judge Sheila K. Oberto on 2/29/16. (Verduzco, M)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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JAIME BELTRAN,
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Petitioner,
v.
Case No. 1:15-cv-01858-DAD-SKO HC
ORDER WITHDRAWING FINDINGS AND
RECOMMENDATIONS RECOMMENDING
DISMISSAL OF THE PETITION FOR
FAILURE TO EXHAUST STATE REMEDIES
WARREN L. MONTGOMERY, Warden,
Calipatria State Prison,
(Doc. 6)
Respondent.
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Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus
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pursuant to 28 U.S.C. § 2254. The Court referred the matter to the undersigned Magistrate Judge
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pursuant to 28 U.S.C. § 636(b)(1) and Local Rules 302 and 304.
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On December 30, 2015, the undersigned issued findings and recommendation that the Court
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dismiss the petition because of Petitioner's failure to exhaust state remedies. On February 29, 2016,
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Petitioner notified the Court that the California Supreme Court denied his petition for review on
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February 17, 2016.
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Generally, a petitioner must have fully exhausted state remedies at the time he files for
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federal habeas relief. 28 U.S.C. § 2254(b); Rose v. Lundy, 455 U.S. 509, 515-20 (1982). A claim is
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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 on the claim, the barrier to federal habeas consideration of the claim's substantive
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merits is removed, and the federal court may proceed to consider it. Sharpe v. Buchanan, 317 U.S.
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238, 239 (1942).
Petitioner has now fully exhausted his state court remedies. Accordingly, the undersigned
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hereby WITHDRAWS the findings and recommendations filed on December 30, 2015.
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IT IS SO ORDERED.
Dated:
February 29, 2016
/s/ Sheila K. Oberto
UNITED STATES MAGISTRATE JUDGE
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