Dotson v. Harris

Filing 4

ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kendall J. Newman on 5/15/2017 DIRECTING the Clerk to assign a District Judge; GRANTING 2 Motion to Proceed IFP; and RECOMMENDING that 1 Petition for Writ of Habeas Corpus be dismissed for failure to exhaust state remedies. Referred to Judge Garland E. Burrell, Jr. Objections due within 14 days after being served with these findings and recommendations. (cc: Attorney General, Michael Farrell) (Henshaw, R)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 CHARLES A. DOTSON, 12 Petitioner, 13 14 No. 2: 17-cv-0874 KJN P v. ORDER AND FINDINGS AND RECOMMENDATIONS KAMALA HARRIS, 15 Respondent. 16 Petitioner, proceeding pro se, has filed an application for a writ of habeas corpus pursuant 17 18 to 28 U.S.C. § 2254, together with a request to proceed in forma pauperis pursuant to 28 U.S.C. 19 § 1915. Petitioner submitted a declaration that makes the showing required by § 1915(a). 20 Accordingly, the request to proceed in forma pauperis will be granted. 28 U.S.C. § 1915(a). The exhaustion of state court remedies is a prerequisite to the granting of a petition for 21 22 writ of habeas corpus. 28 U.S.C. § 2254(b)(1). If exhaustion is to be waived, it must be waived 23 explicitly by respondent’s counsel. 28 U.S.C. § 2254(b)(3).1 A waiver of exhaustion, thus, may 24 not be implied or inferred. A petitioner satisfies the exhaustion requirement by providing the 25 highest state court with a full and fair opportunity to consider all claims before presenting them to 26 the federal court. Picard v. Connor, 404 U.S. 270, 276 (1971); Middleton v. Cupp, 768 F.2d 27 28 1 A petition may be denied on the merits without exhaustion of state court remedies. 28 U.S.C. § 2254(b)(2). 1 1 1083, 1086 (9th Cir. 1985), cert. denied, 478 U.S. 1021 (1986). 2 After reviewing the petition for habeas corpus, the court finds that petitioner has failed to 3 exhaust state court remedies. The claims have not been presented to the California Supreme 4 Court. Further, there is no allegation that state court remedies are no longer available to 5 petitioner. Accordingly, the petition should be dismissed without prejudice.2 6 Good cause appearing, IT IS HEREBY ORDERED that: 7 1. Petitioner is granted leave to proceed in forma pauperis; 8 2. The Clerk of the Court is directed to serve a copy of these findings and 9 10 recommendations together with a copy of the petition filed in the instant case on the Attorney General of the State of California; 11 3. The Clerk of the Court is directed to assign a district judge to this action; and 12 IT IS HEREBY RECOMMENDED that petitioner’s application for a writ of habeas 13 corpus be dismissed for failure to exhaust state remedies. 14 These findings and recommendations are submitted to the United States District Judge 15 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 16 after being served with these findings and recommendations, any party may file written 17 objections with the court and serve a copy on all parties. Such a document should be captioned 18 “Objections to Magistrate Judge’s Findings and Recommendations.” If petitioner files objections, 19 he shall also address whether a certificate of appealability should issue and, if so, why and as to 20 which issues. A certificate of appealability may issue under 28 U.S.C. § 2253 “only if the 21 applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. 22 //// 23 //// 24 //// 25 2 26 27 28 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). 2 1 § 2253(c)(3). Any response to the objections shall be served and filed within fourteen days after 2 service of the objections. The parties are advised that failure to file objections within the 3 specified time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 4 F.2d 1153 (9th Cir. 1991). 5 Dated: May 15, 2017 6 7 8 9 Dot874.dis 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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