Brown v. CDCR

Filing 3

ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Allison Claire on 05/05/15 ORDERING the clerk of court randomly assign a district judge to this action. U.S. District Judge Garland E. Burrell randomly assigned to this action. Also, RECOMMENDING that the instant petition for writ of habeas corpus be dismissed without prejudice because fully unexhausted. The clerk of court be directed to close this case. Referred to Judge Garland E. Burrell. Objections due within 21 days. (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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LERON BROWN,

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Petitioner,

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No. 2:15-cv-00966 AC P

v.

ORDER and

CDCR,1

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FINDINGS AND RECOMMENDATIONS
Respondent.

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

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pursuant to 28 U.S.C. § 2254. Petitioner has not paid the filing fee or filed an application to

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proceed in forma pauperis. This action is referred to this court pursuant to 28 U.S.C. §

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636(b)(1)(B), Local Rule 302(c), and Local General Order No. 262.
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 petition and any attached exhibits that the petitioner is not

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entitled to relief in the district court.” The exhaustion of available state remedies is a prerequisite

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to the federal court exercising jurisdiction over a federal habeas petition. See 28 U.S.C. §

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Plaintiff is informed that a federal petition for writ of habeas corpus must name as respondent
the state officer having custody of the petitioner, that is, the warden of the state prison in which
petitioner is incarcerated. See 28 U.S.C. § 2254; Rule 2(a) of the Rules Governing Section 2254
Cases in the United States District Courts; Smith v. Idaho, 392 F.3d 350, 354-55 (9th Cir. 2004);
Stanley v. California Supreme Court, 21 F.3d 359, 360 (9th Cir. 1994).
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2254(b); see also Rose v. Lundy, 455 U.S. 509 (1982). A petitioner satisfies the exhaustion

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requirement by providing the highest state court with a full and fair opportunity to consider all of

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his claims before presenting them to the federal court. Picard v. Connor, 404 U.S. 270, 276

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(1971), Middleton v. Cupp, 768 F.2d 1083, 1086 (9th Cir. 1985), cert. denied, 478 U.S. 1021

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(1986). When presented with a wholly unexhausted federal habeas corpus petition, a federal

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district court must dismiss the petition. See Rasberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir.

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2006) (completely unexhausted petition must be dismissed without prejudice).

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Review of the petition indicates that petitioner is challenging his March 2, 2015
conviction and April 6, 2015 sentence in the Sacramento County Superior Court, in Case No.

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14F04720. Review of the case access website operated by the Sacramento County Superior Court

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confirms that petitioner was convicted and sentenced on these dates in the identified case.2 The

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instant petition indicates that petitioner has not pursued his recent conviction or sentence on

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appeal or by collateral attack, other than noting that he is awaiting a response from the

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Sacramento County Superior Court on his “appeal.” ECF No. 1 at 4. The remainder of the

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petition sets forth petitioner’s reasons why he asserts he was improperly convicted.

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The court finds the instant petition wholly exhausted. Petitioner must first exhaust his

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claims in the state courts, including the California Supreme Court, before bringing some or all of

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the same claims in federal court.

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Accordingly, IT IS HEREBY ORDERED that the Clerk of Court shall randomly assign a
district judge to this action.

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Further, IT IS HEREBY RECOMMENDED that:

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1. The instant petition for writ of habeas corpus be dismissed without prejudice because

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fully unexhausted, see Rule 4, Rules Governing § 2254 Cases; and

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2. The Clerk of Court be directed to close this case.

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This court may take judicial notice of its own records and the records of other courts. See
United States v. Howard, 381 F.3d 873, 876 n.1 (9th Cir. 2004); United States v. Wilson, 631
F.2d 118, 119 (9th Cir. 1980); see also Fed. R. Evid. 201 (court may take judicial notice of facts
that are capable of accurate determination by sources whose accuracy cannot reasonably be
questioned).
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These findings and recommendations are 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 twenty-one days

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after being served with these findings and recommendations, any party may file written

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objections with the court and serve a copy on all parties. Such a document should be captioned

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“Objections to Magistrate Judge’s Findings and Recommendations.”

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If petitioner files objections, he shall also address whether a certificate of appealability

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should issue and, if so, why and as to which issues. A certificate of appealability may issue under

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28 U.S.C. § 2253 “only if the applicant has made a substantial showing of the denial of a

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constitutional right.” 28 U.S.C. § 2253(c)(3).

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Any response to the objections shall be served and filed within fourteen days after service

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of the objections. The parties are advised that failure to file objections within the specified time

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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: May 5, 2015

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