Reed v. Sherman

Filing 9

ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Gregory G. Hollows on 3/7/14 ORDERING that 4 and 8 Motions to Proceed In Forma Pauperis are GRANTED; Petitioners February 12, 2014 request for appointment of counsel is DENIED wi thout prejudice to a renewal of the motion at a later stage of the proceedings; Clerk of the Court is directed to serve a copy of these findings and recommendations together with a copy of the petition filed in the instant case on the Attorney Gen eral of the State of California; it is RECOMMENDED that petitioners application for a writ of habeas corpus be dismissed for failure to exhaust state remedies. Referred to Judge John A. Mendez; Objections to F&R due within 14 days. (cc Michael Farrell)(Dillon, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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TAMECUS REED,

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No. 2:14-cv-0463 JAM GGH P

Petitioner,

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v.

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STU SHERMAN,

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ORDER and FINDINGS AND
RECOMMENDATIONS
Respondent.

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

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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).
The exhaustion of state court remedies is a prerequisite to the granting of a petition for

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

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explicitly by respondent’s counsel. 28 U.S.C. § 2254(b)(3).1 A waiver of exhaustion, thus, may

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not be implied or inferred. A petitioner satisfies the exhaustion requirement by providing the

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highest state court with a full and fair opportunity to consider all claims before presenting them to

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A petition may be denied on the merits without exhaustion of state court remedies. 28 U.S.C. §
2254(b)(2).
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the federal court. Picard v. Connor, 404 U.S. 270, 276 (1971); Middleton v. Cupp, 768 F.2d

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1083, 1086 (9th Cir. 1985), cert. denied, 478 U.S. 1021 (1986).

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

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exhaust state court remedies. The claims have not been presented to the California Supreme

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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.2

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Petitioner has also requested appointment of counsel. There currently exists no absolute

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right to appointment of counsel in habeas proceedings. See Nevius v. Sumner, 105 F.3d 453, 460

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(9th Cir. 1996). However, 18 U.S.C. § 3006A authorizes the appointment of counsel at any stage

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of the case “if the interests of justice so require.” See Rule 8(c), Fed. R. Governing § 2254 Cases.

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In the present case, the court does not find that the interests of justice would be served by the

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appointment of counsel at the present time.

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Good cause appearing, IT IS HEREBY ORDERED that:

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

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2. Petitioner’s February 12, 2014 request for appointment of counsel is denied without

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prejudice to a renewal of the motion at a later stage of the proceedings;

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3. The Clerk of the Court is directed to serve a copy of these findings and

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recommendations together with a copy of the petition filed in the instant case on the Attorney

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General of the State of California; and
IT IS HEREBY RECOMMENDED that petitioner’s application for a writ of habeas

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corpus be dismissed for failure to exhaust state 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 fourteen days

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The petition also appears to be untimely on its face in challenging a 2002 conviction.
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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after being served with these findings and recommendations, petitioner may file written

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

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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: March 7, 2014

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/s/ Gregory G. Hollows

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UNITED STATES MAGISTRATE JUDGE

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GGH:076/reed0463.103

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