Harrell v. Superior Court of California County of Solano

Filing 31

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Craig M. Kellison on 10/17/2016 RECOMMENDING respondent's 19 motion to dismiss be granted. Referred to Judge Garland E. Burrell, Jr.; Objections to F&R due within 14 days. (Yin, K)

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1 2 3 4 5 IN THE UNITED STATES DISTRICT COURT 6 FOR THE EASTERN DISTRICT OF CALIFORNIA 7 8 JOSHUA N. HARRELL, 9 Petitioner, 10 vs. 11 No. 2:15-CV-1193-GEB-CMK-P S.M. SALINAS, 12 FINDINGS AND RECOMMENDATIONS Respondent. 13 / 14 Petitioner, a state prisoner proceeding pro se, brings this petition for a writ of 15 habeas corpus pursuant to 28 U.S.C. § 2254. Pending before the court is respondent’s motion to 16 dismiss (Doc. 19). 17 Petitioner was convicted on May 12, 2015, of second degree burglary, possession 18 of a check with intent to defraud, and receipt of stolen property. According to respondent, the 19 instant petition is premature because petitioner has not completed the process of exhausting state 20 court remedies. Specifically, petitioner’s direct appeal is still pending before the California 21 Court of Appeal in case no. A145661.1 22 Under 28 U.S.C. § 2254(b), the exhaustion of available state remedies is required 23 before claims can be granted by the federal court in a habeas corpus case. See Rose v. Lundy, 24 455 U.S. 509 (1982); see also Kelly v. Small, 315 F.3d 1063, 1066 (9th Cir. 2003); Hunt v. 25 1 26 The court may take judicial notice pursuant to Federal Rule of Evidence 201 of matters of public record. See U.S. v. 14.02 Acres of Land, 530 F.3d 883, 894 (9th Cir. 2008). 1 1 Pliler, 336 F.3d 839 (9th Cir. 2003). Claims may be denied on the merits notwithstanding lack of 2 exhaustion. See 28 U.S.C. § 2254(b)(2). “A petitioner may satisfy the exhaustion requirement 3 in two ways: (1) by providing the highest state court with an opportunity to rule on the merits of 4 the claim . . .; or (2) by showing that at the time the petitioner filed the habeas petition in federal 5 court no state remedies are available to the petitioner and the petitioner has not deliberately 6 by-passed the state remedies.” Batchelor v. Cupp , 693 F.2d 859, 862 (9th Cir. 1982) (citations 7 omitted). The exhaustion doctrine is based on a policy of federal and state comity, designed to 8 give state courts the initial opportunity to correct alleged constitutional deprivations. See Picard 9 v. Connor, 404 U.S. 270, 275 (1971); see also Rose, 455 U.S. at 518. 10 Here, petitioner’s direct appeal is still pending. Thus, petitioner has not yet 11 presented his claims to the highest state court and the instant federal petition is unexhausted and 12 should be dismissed without prejudice. 13 14 Based on the foregoing, the undersigned recommends that respondent’s motion to dismiss (Doc. 19) be granted. 15 These findings and recommendations are submitted to the United States District 16 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 14 days 17 after being served with these findings and recommendations, any party may file written 18 objections with the court. Responses to objections shall be filed within 14 days after service of 19 objections. Failure to file objections within the specified time may waive the right to appeal. 20 See Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 21 22 23 24 DATED: October 17, 2016 ______________________________________ CRAIG M. KELLISON UNITED STATES MAGISTRATE JUDGE 25 26 2

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