Owens v. People of the State of California et al

Filing 32

ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Gregory G. Hollows on 5/9/2019 GRANTING 31 Motion to Proceed IFP and RECOMMENDING Petitioner's application for a writ of habeas corpus be dismissed for failure to exhaust state remedies. Referred to Judge Kimberly J. Mueller. Objections due within 14 days after being served with these findings and recommendations. (Henshaw, R)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10
11

KENNETH O. OWENS JR.,

12

Petitioner,

13
14
15

v.

No. 2:15-cv-01286 KJM GGH P

ORDER AND FINDINGS AND
RECOMMENDATIONS

STATE OF CALIFORNIA, et al.,
Respondents.

16
17
18
19
20

Petitioner, a state prisoner proceeding pro se, has filed an application for a writ of habeas
corpus pursuant to 28 U.S.C. § 2254, together with a request to proceed in forma pauperis.
Examination of the affidavit reveals petitioner is unable to afford the costs of this action.
Accordingly, leave to proceed in forma pauperis is granted. 28 U.S.C. § 1915(a).

21

On January 5, 2017, petitioner was granted a stay of this proceeding pending exhaustion

22

of his state court remedies. ECF Nos. 18 (Findings and Recommendations filed on October 31,

23

2016), 20 (Order Adopting Findings and Recommendations filed on October 31, 2016). Prior to

24

the grant of the stay, petitioner filed his first amended petition acknowledging that he had fully

25

exhausted his claims in state court. ECF No. 20. On January 24, 2019, the undersigned

26

dismissed the first amended petition for failing to comply with Rule 2 of the Rules Governing

27

Section 2254 Cases and granted petitioner thirty days to file an amended petition. ECF No. 26.

28

Petitioner has filed his second amended petition. ECF No. 29.
1

1

The exhaustion of available state remedies is a prerequisite to a federal court’s

2

consideration of claims sought to be presented in habeas corpus proceedings. See Rose v. Lundy,

3

455 U.S. 509 (1982); 28 U.S.C. § 2254(b). A petitioner can satisfy the exhaustion requirement by

4

providing the highest state court with a full and fair opportunity to consider all claims before

5

presenting them to the federal court. Picard v. Connor, 404 U.S. 270, 276 (1971), Middleton v.

6

Cupp, 768 F.2d 1083, 1086 (9th Cir. 1985), cert. denied, 478 U.S. 1021 (1986).

7

After reviewing the petition for habeas corpus, the court finds that petitioner has failed to

8

exhaust state court remedies. The claims have not been presented to the California Supreme

9

Court. The present petition on its face clearly indicates that the headlined claims have not been

10

presented to the California Supreme Court, either by way of direct review petition, or state habeas

11

corpus. The argument section in the petition contains a myriad of other claims, sub-claims or

12

simply critical observations, most of which appear unexhausted. The court has given petitioner

13

every opportunity to exhaust his claims. The undersigned now finds that further opportunities

14

would be futile. Moreover, there is no allegation that state court remedies are no longer available

15

to him.

16
17

Good cause appearing, IT IS HEREBY ORDERED that petitioner is granted leave to
proceed in forma pauperis (ECF No. 31); and

18
19

IT IS HEREBY RECOMMENDED that petitioner’s application for a writ of habeas
corpus be dismissed for failure to exhaust state remedies.

20

These findings and recommendations will be submitted to the United States District Judge

21

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

22

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

23

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

24

“Objections to Findings and Recommendations.” Any response to the objections shall be filed

25

////

26

////

27

////

28

////
2

1

and served within fourteen days after service of the objections. The parties are advised that

2

failure to file objections within the specified time may waive the right to appeal the District

3

Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

4

Dated: May 9, 2019

5

/s/ Gregory G. Hollows
UNITED STATES MAGISTRATE JUDGE

6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
3