Mitchell v. Soto

Filing 3

ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Gregory G. Hollows on 07/17/14 ORDERING the clerk shall assign a district judge to this case as petitioner has not filed a consent to the undersigned presiding. U.S. District Judge Tr oy L. Nunley randomly assigned to this action. The clerk of the court shall serve a copy of these findings and recommendations together with a copy of the petition filed in the instant case on the Attorney General of the State of California. Also, RECOMMENDING that petitioner's application for a writ of habeas corpus be dismissed for failure to exhaust state remedies. Referred to Judge Troy L. Nunley. Objections due within 14 days. (cc: Michael Farrell, Attorney General)(Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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NEANO MITCHELL,

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Petitioner,

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v.

No. 2:14-cv-1438 GGH P
ORDER and
FINDINGS AND RECOMMENDATIONS

JOHN SOTO,

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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.
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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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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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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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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Good cause appearing, IT IS HEREBY ORDERED that:

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1. The Clerk shall assign a district judge to this case as petitioner has not filed a consent

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to the undersigned presiding pursuant to 28 U.S.C. § 636(c);

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2. The 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
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

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assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days

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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: July 17, 2014

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/s/ Gregory G. Hollows

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UNITED STATES MAGISTRATE JUDGE

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GGH:076/Mitch1438.103

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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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