Vasquez v. The People of the State of California

Filing 4

ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kendall J. Newman on 5/21/10 ORDERING that Clerk shall assign a district judge to this case; RECOMMENDING that the 1 instant petition for writ of habeas corpus be dismissed with prejudice; and Clerk of Court be directed to close this case. Referred to Judge Frank C. Damrell, Jr.; Objections to F&R due within 21 days.(Dillon, M)

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 Respondent. 15 16 17 18 19 20 21 22 23 24 25 26 / Petitioner, a state prisoner proceeding without counsel, has filed, inappropriately, an application for a writ of habeas corpus pursuant to 28 U.S.C. 2254. Petitioner designates the petition as an "appeal" of his December 10, 2009 conviction and March 26, 2010 sentencing in the Sacramento County Superior Court. (See Dkt. No. 1, at 2.) The exhaustion of state court remedies is a prerequisite to the granting of a federal petition for writ of habeas corpus. 28 U.S.C. 2254(b)(1). A petitioner satisfies the exhaustion requirement by providing the highest state court with a full and fair opportunity to consider all claims, whether through direct appeal and/or habeas review, before presenting them to the federal court. Picard v. Connor, 404 U.S. 270, 276 (1971); Middleton v. Cupp, 768 F.2d 1083, 1086 (9th Cir.), cert. denied, 478 U.S. 1021 (1986). The failure of petitioner to exhaust state court remedies is patently apparent on the 1 vs. PEOPLE OF THE STATE OF CALIFORNIA, ORDER and FINDINGS AND RECOMMENDATIONS IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA JOSE FEDERICO VASQUEZ, Petitioner, No. 2:10-cv-1189 KJN P 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 face of the petition. Because none of petitioner's claims have been presented to the California Supreme Court, the petition must be dismissed with prejudice. Accordingly, IT IS HEREBY ORDERED that: 1. The Clerk of Court shall assign a district judge to this case. Additionally, IT IS HEREBY RECOMMENDED that: 1. The instant petition for writ of habeas corpus (Dkt. No. 1) be dismissed with prejudice; and 2. The Clerk of Court be directed to close this case. These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. 636(b)(l). Within 21 days after being served with these findings and recommendations, plaintiff may file written objections with the court. The document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Plaintiff is advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). DATED: May 21, 2010 _____________________________________ KENDALL J. NEWMAN UNITED STATES MAGISTRATE JUDGE vasq1189.dism 2

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