Huante v. Frauenheim

Filing 4

ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Deborah Barnes on 9/20/2017 GRANTING 2 Motion to Proceed IFP; ORDERING Clerk of Court to assign a district judge to this case and serve a copy of these findings and recommendations on the Attorney General of CA; and RECOMMENDING 1 Petition for Writ of Habeas Corpus be dismissed for failure to exhaust state remedies. Assigned and referred to Judge Garland E. Burrell, Jr. Objections due within 14 days after being served with these findings and recommendations. (cc: Attorney General of CA) (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 FRED HUANTE, 12 13 14 15 No. 2:17-cv-1886 DB P Petitioner, v. ORDER AND FINDINGS AND RECOMMENDATIONS SCOTT FRAUENHEIM, Respondent. 16 17 Petitioner, a state prisoner proceeding pro se, has filed an application for a writ of habeas 18 corpus pursuant to 28 U.S.C. § 2254 together with a request to proceed in forma pauperis 19 pursuant to 28 U.S.C. § 1915. Petitioner has submitted a declaration that makes the showing 20 required by § 1915(a). Accordingly, the request to proceed in forma pauperis will be granted. 21 28 U.S.C. § 1915(a). 22 The exhaustion of state court remedies is a prerequisite to the granting of a petition for 23 writ of habeas corpus. 28 U.S.C. § 2254(b)(1). A petitioner satisfies the exhaustion requirement 24 by providing the highest state court with a full and fair opportunity to consider all claims before 25 presenting them to the federal court. Picard v. Connor, 404 U.S. 270, 276 (1971); Middleton v. 26 Cupp, 768 F.2d 1083, 1086 (9th Cir. 1985). 27 28 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 state courts through a 1 1 petition for a writ of habeas corpus. 1 Further, there is no allegation that state court remedies are 2 no longer available to petitioner. Accordingly, the petition should be dismissed without 3 prejudice. 2 4 Good cause appearing, IT IS HEREBY ORDERED that: 5 1. Petitioner is granted leave to proceed in forma pauperis; 6 2. The Clerk of the Court shall assign a district judge to this case; 7 2. The Clerk of the Court shall serve a copy of these findings and recommendations 8 together with a copy of the petition filed in the instant case on the Attorney General of the State 9 of California; and 10 11 IT IS HEREBY RECOMMENDED that petitioner’s application for a writ of habeas corpus be dismissed for failure to exhaust state remedies. 12 These findings and recommendations are submitted to the United States District Judge 13 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 14 after being served with these findings and recommendations, petitioner may file written 15 objections with the court. Such a document should be captioned “Objections to Magistrate 16 Judge’s Findings and Recommendations.” If petitioner files objections, he shall also address 17 whether a certificate of appealability should issue and, if so, why and as to which issues. A 18 certificate of appealability may issue under 28 U.S.C. § 2253 “only if the applicant has made a 19 substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(3). Petitioner is 20 //// 21 1 24 In fact, petitioner points out that the California Court of Appeal instructed him to file a habeas petition in the state superior court seeking retesting of the ballistics evidence. (See Pet. (ECF No. 1) at 5; see also People v. Huante, Nos. C080122, C080600, 2016 WL 6123920, at *3 (Cal. Ct. App. Oct. 20, 2016) (“This decision does not preclude defendants from filing habeas petitions in the trial court in order to obtain the bullets and an expert, or from working with the People to obtain the bullets under sections 1417 et seq. as suggested by the trial court.”) 25 2 22 23 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 advised that failure to file objections within the specified time may waive the right to appeal the 2 District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 3 DATED: September 20, 2017 4 5 /s/ DEBORAH BARNES UNITED STATES MAGISTRATE JUDGE 6 7 8 9 10 11 12 13 14 DLB:9 DLB1/prisoner-habeas/Huan1886.103 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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