Goldman v. Superior Court, County of San Joaquin
Filing
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FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Craig M. Kellison on 1/23/2012 RECOMMENDING that respondent's 22 motion to dismiss be granted. Referred to Judge Garland E. Burrell, Jr.; Objections due within 14 days. (Yin, K)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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MICHAEL A. GOLDMAN,
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No. CIV S-11-2233-GEB-CMK-P
Petitioner,
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vs.
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STEVE MOORE,
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FINDINGS AND RECOMMENDATIONS
Respondent.
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Petitioner, a state prisoner proceeding pro se, brings this petition for a writ of
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habeas corpus pursuant to 28 U.S.C. § 2254. Pending before the court is respondent’s motion to
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dismiss (Doc. 22).
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At the time this action was commenced, petitioner was a pre-trial detainee. He
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has since been convicted and is now in custody pursuant to a state court judgment. Respondent
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argues that the petition must be dismissed as unexhausted because petitioner’s direct appeal
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is still pending in the California Court of Appeal. The court agrees. See 28 U.S.C.
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§ 2254(b)(1)(A); see also Sherwood v. Tomkins, 716 F.2d 632 (9th Cir. 1983) (holding that a
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federal habeas petition is premature when the petitioner’s direct criminal appeal is pending in
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state court); Picard v. Connor, 404 U.S. 270 (1971).
Based on the foregoing, the undersigned recommends that respondent’s motion to
dismiss (Doc. 22) be granted.
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These findings and recommendations are submitted to the United States District
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Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 14 days
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after being served with these findings and recommendations, any party may file written
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objections with the court. Responses to objections shall be filed within 14 days after service of
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objections. Failure to file objections within the specified time may waive the right to appeal.
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See Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
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DATED: January 23, 2012
______________________________________
CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE
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