(HC) Trammell v. State of California

Filing 6

ORDER DIRECTING Clerk of Court to Assign District Judge; FINDINGS and RECOMMENDATION to Dismiss Unexhausted Petition re 1 Petition for Writ of Habeas Corpus, signed by Magistrate Judge Jennifer L. Thurston on 10/15/2020. Referred to Unassigned DJ; Objections to F&R due within 30 days. (Rivera, O)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 NICHOLAS KENNETH TRAMMELL, 12 Petitioner, 13 14 v. STATE OF CALIFORNIA, 15 Respondent. 16 ) ) ) ) ) ) ) ) ) ) ) Case No.: 1:20-cv-01448-JLT (HC) ORDER DIRECTING CLERK OF COURT TO ASSIGN DISTRICT JUDGE FINDINGS AND RECOMMENDATION TO DISMISS UNEXHAUSTED PETITION [THIRTY-DAY OBJECTION DEADLINE] 17 On September 23, 2020, Petitioner filed the instant petition for writ of habeas corpus in United 18 19 States Court of Appeals for the Ninth Circuit. (Doc. 1.) The Ninth Circuit transferred the petition to 20 this Court on October 13, 2020. (Doc. 2.) Because the petition appears to be unexhausted, the Court 21 will recommend it be SUMMARILY DISMISSED without prejudice. DISCUSSION 22 23 24 A. Preliminary Review of Petition Rule 4 of the Rules Governing Section 2254 Cases requires the Court to make a preliminary 25 review of each petition for writ of habeas corpus. The Court must summarily dismiss a petition “[i]f it 26 plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in 27 the district court. . .” Rule 4; O’Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 1990). The Advisory 28 Committee Notes to Rule 8 indicate that the Court may dismiss a petition for writ of habeas corpus, 1 1 either on its own motion under Rule 4, pursuant to the respondent’s motion to dismiss, or after an 2 answer to the petition has been filed. 3 B. Exhaustion A petitioner who is in state custody and wishes to collaterally challenge his conviction by a 4 5 petition for writ of habeas corpus must exhaust state judicial remedies. 28 U.S.C. § 2254(b)(1). The 6 exhaustion doctrine is based on comity to the state court and gives the state court the initial 7 opportunity to correct the state's alleged constitutional deprivations. Coleman v. Thompson, 501 U.S. 8 722, 731 (1991); Rose v. Lundy, 455 U.S. 509, 518 (1982). A petitioner can satisfy the exhaustion requirement by providing the highest state court with a 9 10 full and fair opportunity to consider each claim before presenting it to the federal court. Duncan v. 11 Henry, 513 U.S. 364, 365 (1995). A federal court will find that the highest state court was given a full 12 and fair opportunity to hear a claim if the petitioner has presented the highest state court with the 13 claim's factual and legal basis. Duncan, 513 U.S. at 365 (legal basis); Kenney v. Tamayo-Reyes, 504 14 U.S. 1, 112 S.Ct. 1715, 1719 (1992) (factual basis). Petitioner indicates that review in the Court of Appeals and California Supreme Court are 15 16 pending.1 (See Doc. 1 at 5-6.) Because it appears Petitioner’s appeals are still pending, the petition is 17 premature, and the Court must dismiss the petition. See Raspberry v. Garcia, 448 F.3d 1150, 1154 18 (9th Cir. 2006); Jiminez v. Rice, 276 F.3d 478, 481 (9th Cir. 2001); Calderon v. United States Dist. 19 Court, 107 F.3d 756, 760 (9th Cir. 1997) (en banc); Greenawalt v. Stewart, 105 F.3d 1268, 1273 (9th 20 Cir. 1997). The Court cannot consider a petition that is entirely unexhausted. Rose, 455 U.S. at 521- 21 22; Calderon, 107 F.3d at 760. Therefore, the petition must be dismissed for lack of exhaustion. ORDER 22 The Court DIRECTS the Clerk of Court to assign a district judge to the case. 23 RECOMMENDATION 24 Accordingly, the Court RECOMMENDS that the habeas corpus petition be SUMMARILY 25 26 27 1 28 It appears Petitioner has also sought relief in the California Supreme Court in various habeas corpus matters. The Court may take judicial notice of sources whose accuracy cannot be reasonably disputed (Fed.R.Evid. 201(b)(2)). Thus, the Court takes judicia l notice of the on-line docket of the California Supreme Court. 2 1 DISMISSED without prejudice for lack of jurisdiction. 2 This Findings and Recommendation is submitted to the United States District Court Judge 3 assigned to this case, pursuant to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of the 4 Local Rules of Practice for the United States District Court, Eastern District of California. Within 5 thirty days after being served with a copy, Petitioner may file written objections with the Court. Such 6 a document should be captioned “Objections to Magistrate Judge’s Findings and Recommendation.” 7 The Court will then review the Magistrate Judge’s ruling pursuant to 28 U.S.C. § 636 (b)(1)(C). 8 Failure to file objections within the specified time may waive the right to appeal the District Court’s 9 order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 10 11 12 13 IT IS SO ORDERED. Dated: October 15, 2020 /s/ Jennifer L. Thurston UNITED STATES MAGISTRATE JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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