Cooley v. Shasta County Superior Court

Filing 9

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)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ERIC LEE COOLEY, JR.,

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No. 2:16-cv-2979 CKD P

Petitioner,
v.

ORDER

SHASTA COUNTY SUPERIOR COURT,
Respondent.

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Petitioner, a state prisoner proceeding pro se, has 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 has submitted a declaration that makes the showing

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required by § 1915(a). Accordingly, the request to proceed in forma pauperis will be granted.

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28 U.S.C. § 1915(a). Petitioner has consented to Magistrate Judge jurisdiction to conduct all

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proceedings in this action. (ECF No. 4.)

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Petitioner challenges his December 2016 conviction for burglary and other offenses, for

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which the Shasta County Superior Court imposed a sentence of twenty years. Petitioner has not

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appealed his conviction. (ECF No. 1.)

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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

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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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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. The claims have not been presented to the California Supreme

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Court. Further, there is no allegation that state court remedies are no longer available to

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petitioner. Accordingly, the petition will be dismissed without prejudice.2

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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 petition is dismissed without prejudice for failure to exhaust state remedies; and

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3. 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.

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Dated: January 30, 2017

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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2 / cool2979.103

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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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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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