Bunn v. Kaplan

Filing 7

ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 04/01/13 ORDERING the clerk of the court assign a district court judge to this case. U.S. District Court Judge Lawrence K. Karlton randomly assigned to this acti on. Petitioner is granted leave to proceed in forma pauperis 5 . Also, RECOMMENDING that petitioner's application for a writ of habeas corpus be dismissed for failure to exhaust state court remedies. Referred to Judge Lawrence K. Karlton. Objections due within 14 days. (Plummer, M)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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GARY L. BUNN,

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Petitioner,

No. 2:13-cv-0438 CKD P

Respondent.

ORDER AND

vs.
M. KAPLAN,

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/

FINDINGS AND RECOMMENDATIONS

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Petitioner, a state prisoner proceeding pro se, has filed an application for a writ of

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habeas corpus pursuant to 28 U.S.C. § 2254 together with a request to proceed in forma pauperis

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pursuant to 28 U.S.C. § 1915. Petitioner has submitted a declaration that makes the showing

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required by § 1915(a). Accordingly, the request to proceed in forma pauperis will be granted.

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28 U.S.C. § 1915(a).

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The exhaustion of state court remedies is a prerequisite to the granting of a

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petition for writ of habeas corpus. 28 U.S.C. § 2254(b)(1). A petitioner satisfies the exhaustion

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requirement by providing the highest state court with a full and fair opportunity to consider all

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claims before presenting them to the federal court. Picard v. Connor, 404 U.S. 270, 276 (1971).

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After reviewing the petition for habeas corpus, the court finds that petitioner has

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failed to exhaust state court remedies. The claims have not been presented to the California
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Supreme Court. Further, there is no allegation that state court remedies are no longer available to

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petitioner. Accordingly, the petition should be dismissed without prejudice.1

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Good cause appearing, IT IS HEREBY ORDERED that:

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1. The Clerk of the Court assign a district court judge to this case; and

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2. Petitioner is granted leave to proceed in forma pauperis;

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IT IS HEREBY RECOMMENDED that petitioner’s application for a writ of

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habeas corpus be dismissed for failure to exhaust state court remedies.

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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

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fourteen days after being served with these findings and recommendations, petitioner may file

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written objections with the court. The document should be captioned “Objections to Findings

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and Recommendations.” Petitioner is advised that failure to file objections within the specified

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time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153

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(9th Cir. 1991).

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Dated: April 1, 2013

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_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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bunn0438.103

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Petitioner is cautioned that the habeas corpus statute imposes a one year statute of
limitations for filing non-capital habeas corpus petitions in federal court. In most cases, the one
year period will start to run on the date on which the state court judgment became final by the
conclusion of direct review or the expiration of time for seeking direct review, although the
statute of limitations is tolled while a properly filed application for state post-conviction or other
collateral review is pending. 28 U.S.C. § 2244(d).
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