(HC) Gibbs v. Shasta County Superior Court

Filing 11

ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 3/31/2021 VACATING 7 Findings and Recommendations; DENYING as moot 8 Motion to Proceed IFP; DENYING without prejudice 9 Request to File Documents Electr onically; and RECOMMENDING 1 Petition for Writ of Habeas Corpus be dismissed for failure to exhaust state court remedies and this case be closed. Referred to Judge William B. Shubb. Objections due within 14 days after being served with these findings and recommendations. (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 ROBERT ALAN GIBBS, 12 Petitioner, 13 14 No. 2:21-cv-0027 WBS CKD P v. ORDER AND SHASTA COUNTY SUPERIOR COURT, 15 FINDINGS AND RECOMMENDATIONS Respondent. 16 Petitioner has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. 17 18 On February 23, 2021, the court recommended that this action be dismissed for plaintiff’s failure 19 to pay the filing fee for this action or submit a request to proceed in forma pauperis. As petitioner 20 has now paid the filing fee, the court’s recommendation will be vacated. 21 Under Rule 4 of the Rules Governing Section 2254 Cases, the court must review all 22 petitions for writ of habeas corpus and summarily dismiss any petition if it is plain that the 23 petitioner is not entitled to relief. The court has conducted that review. The exhaustion of state court remedies is a prerequisite to the granting of a petition for 24 25 writ of habeas corpus. 28 U.S.C. § 2254(b)(1). A petitioner satisfies the exhaustion requirement 26 by providing the highest state court with a full and fair opportunity to consider all claims before 27 presenting them to the federal court. Picard v. Connor, 404 U.S. 270, 276 (1971). 28 ///// 1 Petitioner’s petition for writ of habeas corpus reveals he has not exhausted state court 1 2 remedies with respect to any of his claims. Accordingly, the petition must summarily be 3 dismissed. 4 The court notes that petitioner has requested that he be permitted to file documents 5 electronically in this matter. In light of the foregoing, petitioner’s request will be denied. If this 6 action does proceed further on petitioner’s claims, petitioner may renew his request. 7 In accordance with the above, IT IS HEREBY ORDERED that: 8 1. The court’s February 23, 2021 findings and recommendations are vacated; 9 2. Petitioner’s motion for leave to proceed in forma pauperis (ECF No. 8) is denied as 10 11 12 moot. 3. Petitioner’s request that he be permitted to file documents in this action electronically (ECF No. 9) is denied without prejudice. 13 IT IS HEREBY RECOMMENDED that: 14 1. Petitioner’s petition for a writ of habeas corpus be dismissed for failure to exhaust state 15 court remedies; and 16 2. This case be closed. 17 These findings and recommendations are submitted to the United States District Judge 18 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 19 after being served with these findings and recommendations, petitioner may file written 20 objections with the court. Such a document should be captioned “Objections to Magistrate 21 Judge’s Findings and Recommendations.” In his objections petitioner may address whether a 22 certificate of appealability should issue in the event he files an appeal of the judgment in this 23 case. See Rule 11, Federal Rules Governing Section 2254 Cases (the district court must issue or 24 deny a certificate of appealability when it enters a final order adverse to the applicant). Where, as 25 here, a habeas petition is dismissed on procedural grounds, a certificate of appealability “should 26 issue if the prisoner can show: (1) ‘that jurists of reason would find it debatable whether the 27 district court was correct in its procedural ruling;’ and (2) ‘that jurists of reason would find it 28 debatable whether the petition states a valid claim of the denial of a constitutional right.’” Morris 2 1 v. Woodford, 229 F.3d 775, 780 (9th Cir. 2000) (quoting Slack v. McDaniel, 529 U.S. 473, 484 2 (2000)). Petitioner is advised that failure to file objections within the specified time may waive 3 the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 4 Dated: March 31, 2021 _____________________________________ CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE 5 6 7 8 9 10 1 gibb0027.fte 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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