Potter v. State of California

Filing 8

ORDER, FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Gregory G. Hollows on 12/5/14 ORDERING that Petitioner is granted leave to proceed in forma pauperis; The Clerk of the Court is directed to serve a copy of these findings and recommendati ons together with a copy of the petition filed in the instant case on the Attorney General of the State of California; andIT IS HEREBY RECOMMENDED that petitioners application for a writ of habeas corpus be dismissed for failure to exhaust state remedies. Referred to Judge Troy L. Nunley; 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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DAVID WAYNE POTTER,

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Petitioner,

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v.

No. 2:14-cv-2486 TLN GGH P

ORDER AND FINDINGS AND
RECOMMENDATIONS

STATE OF CALIFORNIA, et al.,

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Respondents.

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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, along with an application to proceed in forma pauperis.

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

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costs of suit. Accordingly, the application to proceed in forma pauperis will be granted. See 28

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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).
After reviewing the third amended petition for habeas corpus, 2 the court finds that

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petitioner has failed to exhaust state court remedies. The claims have not been presented to the

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California Supreme Court. Further, there is no allegation that state court remedies are no longer

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available to petitioner. Should petitioner disagree with these findings, he should file objections

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and attach the California Supreme Court decision to his objections. Accordingly, the petition

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should be dismissed without prejudice.3

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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. 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

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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 time

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/////

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Petitioner has filed second and third amended petitions, and the court has reviewed the most
recent amendment. The second amended petition states that petitioner sought review with the
California Supreme Court, but is “awaiting result.” (ECF No. 6 at 5.) The third amended petition
states that petitioner did not seek review by the state supreme court. (ECF No. 7 at 2, 6.)

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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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may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th

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Cir. 1991).

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Dated: December 5, 2014

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/s/ Gregory G. Hollows

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UNITED STATES MAGISTRATE JUDGE

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GGH:076
Pott2486.103

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