Rhinehart v. Sherman

Filing 6

ORDER signed by Magistrate Judge Dale A. Drozd on 02/04/14 ordering petitioner's motion to proceed in forma pauperis 2 is granted. Petitioner's application for a writ of habeas corpus 1 is dismissed without prejudice. Petitioner's motion for a stay and abeyance 3 is denied. A certificate of appealability is not issued in this action. This action is closed. CASE CLOSED. (Plummer, M)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 LAMONT LEE RHINEHART, 12 13 14 15 No. 2:13-cv-2645 DAD P Petitioner, v. ORDER STU SHERMAN, Warden, Respondent. 16 17 Petitioner, a state prisoner proceeding pro se, has filed a petition for a writ of habeas 18 corpus pursuant to 28 U.S.C. § 2254, together with an application to proceed in forma pauperis. 19 Petitioner has also filed a motion for a stay and abeyance. 20 Examination of the in forma pauperis application reveals that petitioner is unable to afford 21 the costs of suit. Accordingly, the application to proceed in forma pauperis will be granted. See 22 28 U.S.C. § 1915(a). 23 24 PRELIMINARY SCREENING Rule 4 of the Rules Governing Section 2254 Cases allows a district court to dismiss a 25 petition if it “plainly appears from the face of the petition and any exhibits annexed to it that the 26 petitioner is not entitled to relief in the district court. . . .” Rule 4, Rules Governing Section 2254 27 Cases. As reflected in the Advisory Committee Notes to Rule 8 of the Rules Governing Section 28 2254 Cases, the court may dismiss a petition for writ of habeas corpus at several stages of a case, 1 1 including “summary dismissal under Rule 4; a dismissal pursuant to a motion by the respondent; 2 a dismissal after the answer and petition are considered; or a dismissal after consideration of the 3 pleadings and an expanded record.” 4 BACKGROUND 5 On December 23, 2013, petitioner commenced this action by filing a form petition for writ 6 of habeas corpus pursuant to 28 U.S.C. § 2254. Therein, petitioner raises a single claim 7 concerning an allegedly deficient petition for writ of habeas corpus filed on his behalf in state 8 court. Petitioner acknowledges that he did not raise this issue on direct appeal or through a post- 9 conviction motion or petition for writ of habeas corpus filed with the California Supreme Court. 10 (Pet. at 6-7.) 11 DISCUSSION 12 The exhaustion of state court remedies is a prerequisite to the granting of a federal petition 13 for writ of habeas corpus. 28 U.S.C. § 2254(b)(1). If exhaustion is to be waived, it must be 14 waived explicitly by respondent’s counsel. 28 U.S.C. § 2254(b)(3). A waiver of exhaustion, 15 thus, may not be implied or inferred. A petitioner satisfies the exhaustion requirement by 16 providing the highest state court with a full and fair opportunity to consider all claims before 17 presenting them to the federal court. Picard v. Connor, 404 U.S. 270, 276 (1971); Middleton v. 18 Cupp, 768 F.2d 1083, 1086 (9th Cir. 1986). 19 Here, petitioner concedes that he has not presented the sole claim set forth in his federal 20 habeas petition for relief to the California Supreme Court. In addition, although petitioner has 21 filed a motion for a stay and abeyance, he is advised that a stay and abeyance is not available 22 where, as here, the federal habeas petition is wholly unexhausted. See Raspberry v. Garcia, 448 23 F.3d 1150, 1154 (9th Cir. 2006) (“Once a district court determines that a habeas petition contains 24 only unexhausted claims, it need not inquire further as to petitioner’s intentions. Instead, it may 25 simply dismiss the habeas petition for failure to exhaust.”). Accordingly, the court will dismiss 26 ///// 27 ///// 28 ///// 2 1 the pending petition without prejudice because the single claim contained therein has not been 2 exhausted.1 3 OTHER MATTERS Rule 11 of the Federal Rules Governing Section 2254 Cases states that “the district court 4 5 must issue or deny a certificate of appealability when it enters a final order adverse to the 6 applicant.” A certificate of appealability should be granted for any issue that petitioner can 7 demonstrate is “‘debatable among jurists of reason,’” could be resolved differently by a different 8 court, or is “‘adequate to deserve encouragement to proceed further.’” Jennings v. Woodford, 9 290 F.3d 1006, 1010 (9th Cir. 2002) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 (1983)). For 10 the reasons set forth above, the undersigned declines to issue a certificate of appealability in this 11 case. 12 CONCLUSION 13 Accordingly, IT IS HEREBY ORDERED that: 14 1. Petitioner’s motion to proceed in forma pauperis (Doc. No. 2) is granted; 15 2. Petitioner’s application for a writ of habeas corpus (Doc. No. 1) is dismissed without 16 prejudice; 17 3. Petitioner’s motion for a stay and abeyance (Doc. No. 3) is denied; 18 4. A certificate of appealabilty is not issued in this action; and 19 5. This action is closed. 20 Dated: February 4, 2014 21 22 23 24 DAD:9 rhin2645.103 25 26 27 28 1 Petitioner has consented to Magistrate Judge jurisdiction over this action pursuant to 28 U.S.C. § 636. (Doc. No. 5) 3

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