Russell v. State of California

Filing 4

ORDER signed by Magistrate Judge Gregory G. Hollows on 1/7/2015 DIRECTING the Clerk to serve a copy of this order together with a copy of the petition on the Attorney General; and petitioner's application for writ of habeas corpus is DISMISSED for failure to exhaust state remedies. CASE CLOSED. (cc: AG, Michael Farrell)(Yin, K)

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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 DOUGLAS EUGENE RUSSELL, 12 Petitioner, 13 14 No. 2:14-cv-2755 GGH P v. ORDER STATE OF CALIFORNIA, 15 Respondent. 16 Petitioner, a state prisoner proceeding pro se, has filed an application for a writ of habeas 17 18 corpus pursuant to 28 U.S.C. § 2254, and paid the filing fee. 1 The exhaustion of state court remedies is a prerequisite to the granting of a petition for 19 20 writ of habeas corpus. 28 U.S.C. § 2254(b)(1). If exhaustion is to be waived, it must be waived 21 explicitly by respondent’s counsel. 28 U.S.C. § 2254(b)(3).2 A waiver of exhaustion, thus, may 22 not be implied or inferred. A petitioner satisfies the exhaustion requirement by providing the 23 highest state court with a full and fair opportunity to consider all claims before presenting them to 24 1 25 26 27 28 This action is before the undersigned pursuant to the parties’ consent to proceed before a magistrate judge. 28 U.S.C. § 636(c). When a petitioner has consented to the magistrate judge as the trial judge, under the case assignment procedures of this court, no district judge is assigned, if at all, until the respondent appears. No respondent having appeared, the matter proceeds solely before the undersigned. 2 A petition may be denied on the merits without exhaustion of state court remedies. 28 U.S.C. § 2254(b)(2). 1 1 the federal court. Picard v. Connor, 404 U.S. 270, 276 (1971); Middleton v. Cupp, 768 F.2d 2 1083, 1086 (9th Cir. 1985), cert. denied, 478 U.S. 1021 (1986). 3 After reviewing the petition for habeas corpus, the court finds that petitioner has failed to 4 exhaust state court remedies. The claims have not been presented to the California Supreme 5 Court. Further, there is no allegation that state court remedies are no longer available to 6 petitioner. Accordingly, the petition should be dismissed without prejudice.3 7 Good cause appearing, IT IS HEREBY ORDERED that: 8 1. The Clerk of the Court is directed to serve a copy of this order together with a copy of 9 the petition filed in the instant case on the Attorney General of the State of California; and 2. Petitioner’s application for a writ of habeas corpus is dismissed for failure to exhaust 10 11 state remedies. 12 Dated: January 7, 2015 /s/ Gregory G. Hollows UNITED STATES MAGISTRATE JUDGE 13 14 15 GGH:076/Russ2755.103 16 17 18 19 20 21 22 23 24 25 26 27 28 3 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). 2

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