Herndon v. State of California

Filing 7

ORDER; FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kendall J. Newman on 11/24/15 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 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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GERROD HERNDON,

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Petitioner,

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No. 2:15-cv-2013 TLN KJN P

v.

ORDER AND FINDINGS AND
RECOMMENDATIONS

STATE OF CALIFORNIA,

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Respondent.

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Petitioner, a state prisoner proceeding pro se, filed an application for a writ of habeas

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corpus pursuant to 28 U.S.C. § 2254 together with a request to proceed in forma pauperis

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pursuant to 28 U.S.C. § 1915. Petitioner submitted a declaration that makes the showing required

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by § 1915(a). Accordingly, the request to proceed in forma pauperis is granted. 28 U.S.C.

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§ 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).

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

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exhaust state court remedies. Petitioner states he was sentenced on June 18, 2015. (ECF No. 1 at

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2.) The claims have not been presented to the California Supreme Court.2 Further, there is no

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allegation that state court remedies are no longer available to petitioner. Accordingly, the petition

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should be dismissed without prejudice.3

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Petitioner also mentions a desire to change his plea. Petitioner is advised that he may not
seek to change his plea through a petition for writ of habeas corpus in federal court. Petitioner
should consult with his defense counsel, or seek relief in the Sacramento County Superior Court.

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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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Pursuant to Rule 201 of the Federal Rules of Evidence, the Court has reviewed, and takes
judicial notice of, the electronic dockets for the California Court of Appeal and the California
Supreme Court. California Courts, < http://appellatecases.courtinfo.ca.gov>, visited November
18, 2015. Those judicially-noticed records show that petitioner has not filed any proceeding in
the California Court of Appeal or the California Supreme. Thus, the court has confirmed that
petitioner has not exhausted his state court remedies as to the 2015 conviction.

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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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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

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

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(9th Cir. 1991).

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Dated: November 24, 2015

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/hern2013.103

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