(HC) Taylor v. District Attorney Office

Filing 16

ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Jeremy D. Peterson on 11/13/2023 DIRECTING the Clerk to randomly assign a United States District Judge to this action. District Judge Dale A. Drozd and Magistrate Judge Jeremy D. Pet erson for all further proceedings. It is further RECOMMENDED that the 1 Petition be dismissed for failure to state a cognizable federal habeas claim. Referred to Judge Dale A. Drozd. Objections due within 14 days after being served with these findings and recommendations. New Case Number: 2:23-cv-0460 DAD JDP (HC). (Lopez, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ROBERT TAYLOR,

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Petitioner,
v.
DISTRICT ATTORNEY OFFICE,

Case No. 2:23-cv-00460-JDP (HC)
FINDINGS AND RECOMMENDATIONS
THAT THE AMENDED PETITION BE
DISMISSED WITHOUT LEAVE TO AMEND
ECF No. 13

Respondent.

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Petitioner, a detainee in the Sacramento County Jail proceeding without counsel, seeks a

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writ of habeas corpus under 28 U.S.C. § 2254. After reviewing the initial petition, I found that it

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failed to state a cognizable habeas claim because it appeared that the state conviction had not yet

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been finalized. ECF No. 12. I gave him leave to amend, id., and he has filed an amended

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petition, ECF No. 13. Having reviewed the amended petition, I still conclude that there is no

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finalized conviction at issue. It necessarily follows that any claim in the immediate petition has

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not yet been exhausted by presentation to the California Supreme Court. I now recommend that

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the petition be dismissed.

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The petition is before me for preliminary review under Rule 4 of the Rules Governing

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Section 2254 Cases. Under Rule 4, the judge assigned to the habeas proceeding must examine

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the habeas petition and order a response to the petition unless it “plainly appears” that the

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petitioner is not entitled to relief. See Valdez v. Montgomery, 918 F.3d 687, 693 (9th Cir. 2019);

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Boyd v. Thompson, 147 F.3d 1124, 1127 (9th Cir. 1998).

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Petitioner has not indicated that he has a finalized state conviction. The spaces for “date

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of conviction” and “length of sentence” have been left blank. ECF No. 13 at 1-2. Additionally,

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plaintiff indicates that some form of state appeal remains pending as of this amended petition. Id.

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at 3. Thus, I conclude that petitioner’s claims are not yet ripe for federal habeas consideration.

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See 28 U.S.C. § 2254(a) (“a district court shall entertain an application for a writ of habeas corpus

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in behalf of a person in custody pursuant to the judgment of a State court . . .”). Here, it does not

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appear that petitioner is in custody pursuant to a final state court judgment. Nor is there any

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indication that he has presented any of his claims to the California Supreme Court. See 28 U.S.C.

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§ 2254(b)(1)((A). Petitioner may address these issues in any objections he chooses to file to these

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findings and recommendations.

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It is ORDERED that the Clerk of Court shall assign a district judge to this action.

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Further, it is RECOMMENDED that the petition be DISMISSED for failure to state a

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cognizable federal habeas claim.

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These findings and recommendations are submitted to the United States District Judge

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assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days

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after being served with these findings and recommendations, any party may file written

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objections with the court and serve a copy on all parties. Such a document should be captioned

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“Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the

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objections shall be served and filed within fourteen days after service of the objections. The

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parties are advised that failure to file objections within the specified time may waive the right to

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appeal the District Court’s order. Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez

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v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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IT IS SO ORDERED.

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Dated:
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November 13, 2023
JEREMY D. PETERSON
UNITED STATES MAGISTRATE JUDGE

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