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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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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LAMONT LEE RHINEHART,

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No. 2:13-cv-2645 DAD P

Petitioner,
v.

ORDER

STU SHERMAN, Warden,
Respondent.

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Petitioner, a state prisoner proceeding pro se, has filed a petition for a writ of habeas

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corpus pursuant to 28 U.S.C. § 2254, together with an application to proceed in forma pauperis.

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Petitioner has also filed a motion for a stay and abeyance.

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Examination of the in forma pauperis application reveals that petitioner is unable to afford

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the costs of suit. Accordingly, the application to proceed in forma pauperis will be granted. See

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28 U.S.C. § 1915(a).

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PRELIMINARY SCREENING
Rule 4 of the Rules Governing Section 2254 Cases allows a district court to dismiss a

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petition if it “plainly appears from the face of the petition and any exhibits annexed to it that the

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petitioner is not entitled to relief in the district court. . . .” Rule 4, Rules Governing Section 2254

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Cases. As reflected in the Advisory Committee Notes to Rule 8 of the Rules Governing Section

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2254 Cases, the court may dismiss a petition for writ of habeas corpus at several stages of a case,
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including “summary dismissal under Rule 4; a dismissal pursuant to a motion by the respondent;

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a dismissal after the answer and petition are considered; or a dismissal after consideration of the

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pleadings and an expanded record.”

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BACKGROUND

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On December 23, 2013, petitioner commenced this action by filing a form petition for writ

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of habeas corpus pursuant to 28 U.S.C. § 2254. Therein, petitioner raises a single claim

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concerning an allegedly deficient petition for writ of habeas corpus filed on his behalf in state

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court. Petitioner acknowledges that he did not raise this issue on direct appeal or through a post-

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conviction motion or petition for writ of habeas corpus filed with the California Supreme Court.

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(Pet. at 6-7.)

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DISCUSSION

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

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for writ of habeas corpus. 28 U.S.C. § 2254(b)(1). If exhaustion is to be waived, it must be

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waived explicitly by respondent’s counsel. 28 U.S.C. § 2254(b)(3). A waiver of exhaustion,

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thus, may not be implied or inferred. A petitioner satisfies the exhaustion requirement by

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providing the highest state court with a full and fair opportunity to consider all claims before

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

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Cupp, 768 F.2d 1083, 1086 (9th Cir. 1986).

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Here, petitioner concedes that he has not presented the sole claim set forth in his federal

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habeas petition for relief to the California Supreme Court. In addition, although petitioner has

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filed a motion for a stay and abeyance, he is advised that a stay and abeyance is not available

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where, as here, the federal habeas petition is wholly unexhausted. See Raspberry v. Garcia, 448

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F.3d 1150, 1154 (9th Cir. 2006) (“Once a district court determines that a habeas petition contains

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only unexhausted claims, it need not inquire further as to petitioner’s intentions. Instead, it may

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simply dismiss the habeas petition for failure to exhaust.”). Accordingly, the court will dismiss

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the pending petition without prejudice because the single claim contained therein has not been

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exhausted.1

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OTHER MATTERS
Rule 11 of the Federal Rules Governing Section 2254 Cases states that “the district court

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must issue or deny a certificate of appealability when it enters a final order adverse to the

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applicant.” A certificate of appealability should be granted for any issue that petitioner can

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demonstrate is “‘debatable among jurists of reason,’” could be resolved differently by a different

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court, or is “‘adequate to deserve encouragement to proceed further.’” Jennings v. Woodford,

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290 F.3d 1006, 1010 (9th Cir. 2002) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 (1983)). For

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the reasons set forth above, the undersigned declines to issue a certificate of appealability in this

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case.

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CONCLUSION

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Accordingly, IT IS HEREBY ORDERED that:

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1. Petitioner’s motion to proceed in forma pauperis (Doc. No. 2) is granted;

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2. Petitioner’s application for a writ of habeas corpus (Doc. No. 1) is dismissed without

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prejudice;

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3. Petitioner’s motion for a stay and abeyance (Doc. No. 3) is denied;

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4. A certificate of appealabilty is not issued in this action; and

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5. This action is closed.

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Dated: February 4, 2014

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DAD:9
rhin2645.103

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Petitioner has consented to Magistrate Judge jurisdiction over this action pursuant to 28 U.S.C.
§ 636. (Doc. No. 5)
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