Morales v. California Supreme Court

Filing 8

ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kimberly J. Mueller on 11/30/10 ORDERING that 5 Motion to Proceed IFP is GRANTED; Clerk to assign a District Judge to this case; it is RECOMMENDED that 3 Motion to Stay Proceedings be denied; and this action be dismissed. Randomly assigned and referred to Judge Frank C. Damrell, Jr.; Objections to F&R due within 21 days.(Dillon, M)

(HC) Morales v. California Supreme Court

Doc. 8

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 vs. CALIFORNIA SUPREME COURT, Respondent. / ORDER AND FINDINGS AND RECOMMENDATIONS IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA FRANCISCO MORALES, Petitioner, No. CIV-S-10-3139 KJM P

Petitioner, a state prisoner proceeding pro se, has filed a copy of a petition for writ of habeas corpus that he recently filed in the California Supreme Court. It appears petitioner intends to raise the claims presented to the California Supreme Court to this court by way of a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Because petitioner has not exhausted state court remedies with respect to his claims, petitioner requests that consideration of his § 2254 petition be stayed. The exhaustion of state court remedies is a prerequisite to the granting of a 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 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. 1986). Because petitioner has not exhausted 1
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state court remedies with respect to any of his claims, this action should be dismissed without prejudice. The court should also deny the request for a stay because the court cannot stay an action if there are no claims where state court remedies have been exhausted. Raspberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir. 2006). Petitioner has requested leave to proceed in forma pauperis in this action. Petitioner has submitted a declaration that makes the showing required by 28 U.S.C. § 1915(a). Accordingly, the request to proceed in forma pauperis will be granted. Accordingly, IT IS HEREBY ORDERED that: 1. Petitioner is granted leave to proceed in forma pauperis; and 2. The Clerk of the Court is directed to assign a district court judge to this case. IT IS HEREBY RECOMMENDED that: 1. Petitioner's request for a stay be denied; and 2. This action be dismissed. These findings and recommendations will be submitted to the United States District Judge assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty-one days after being served with these findings and recommendations, petitioner may file written objections with the court. The document should be captioned "Objections to Findings and Recommendations." Petitioner 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: November 30, 2010.

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