Cooley v. Shasta County Superior Court
ORDER signed by Magistrate Judge Carolyn K. Delaney on 1/30/17 ORDERING that 6 Motion to Proceed is GRANTED; The petition is DISMISSED without prejudice for failure to exhaust state remedies; and the Clerk of the Court is directed to serve a copy of these findings and recommendations together with a copy of the petition filed in the instant case on the Attorney General of the State of California. CASE CLOSED. (cc Michael Farrell) (Dillon, M)
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
ERIC LEE COOLEY, JR.,
No. 2:16-cv-2979 CKD P
SHASTA COUNTY SUPERIOR COURT,
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
pursuant to 28 U.S.C. § 1915. Petitioner has submitted a declaration that makes the showing
required by § 1915(a). Accordingly, the request to proceed in forma pauperis will be granted.
28 U.S.C. § 1915(a). Petitioner has consented to Magistrate Judge jurisdiction to conduct all
proceedings in this action. (ECF No. 4.)
Petitioner challenges his December 2016 conviction for burglary and other offenses, for
which the Shasta County Superior Court imposed a sentence of twenty years. Petitioner has not
appealed his conviction. (ECF No. 1.)
The exhaustion of state court remedies is a prerequisite to the granting of a petition for
writ of habeas corpus. 28 U.S.C. § 2254(b)(1). If exhaustion is to be waived, it must be waived
explicitly by respondent’s counsel. 28 U.S.C. § 2254(b)(3).1 A waiver of exhaustion, thus, may
not be implied or inferred. A petitioner satisfies the exhaustion requirement by providing the
highest state court with a full and fair opportunity to consider all claims before presenting them to
the federal court. Picard v. Connor, 404 U.S. 270, 276 (1971); Middleton v. Cupp, 768 F.2d
1083, 1086 (9th Cir. 1985), cert. denied, 478 U.S. 1021 (1986).
After reviewing the petition for habeas corpus, the court finds that petitioner has failed to
exhaust state court remedies. The claims have not been presented to the California Supreme
Court. Further, there is no allegation that state court remedies are no longer available to
petitioner. Accordingly, the petition will be dismissed without prejudice.2
Good cause appearing, IT IS HEREBY ORDERED that:
1. Petitioner is granted leave to proceed in forma pauperis;
2. The petition is dismissed without prejudice for failure to exhaust state remedies; and
3. The Clerk of the Court is directed to serve a copy of these findings and
recommendations together with a copy of the petition filed in the instant case on the Attorney
General of the State of California.
Dated: January 30, 2017
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE
2 / cool2979.103
A petition may be denied on the merits without exhaustion of state court remedies. 28 U.S.C. §
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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