(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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ROBERT TAYLOR, 12 13 14 15 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. 16 17 Petitioner, a detainee in the Sacramento County Jail proceeding without counsel, seeks a 18 writ of habeas corpus under 28 U.S.C. § 2254. After reviewing the initial petition, I found that it 19 failed to state a cognizable habeas claim because it appeared that the state conviction had not yet 20 been finalized. ECF No. 12. I gave him leave to amend, id., and he has filed an amended 21 petition, ECF No. 13. Having reviewed the amended petition, I still conclude that there is no 22 finalized conviction at issue. It necessarily follows that any claim in the immediate petition has 23 not yet been exhausted by presentation to the California Supreme Court. I now recommend that 24 the petition be dismissed. 25 The petition is before me for preliminary review under Rule 4 of the Rules Governing 26 Section 2254 Cases. Under Rule 4, the judge assigned to the habeas proceeding must examine 27 the habeas petition and order a response to the petition unless it “plainly appears” that the 28 1 1 petitioner is not entitled to relief. See Valdez v. Montgomery, 918 F.3d 687, 693 (9th Cir. 2019); 2 Boyd v. Thompson, 147 F.3d 1124, 1127 (9th Cir. 1998). 3 Petitioner has not indicated that he has a finalized state conviction. The spaces for “date 4 of conviction” and “length of sentence” have been left blank. ECF No. 13 at 1-2. Additionally, 5 plaintiff indicates that some form of state appeal remains pending as of this amended petition. Id. 6 at 3. Thus, I conclude that petitioner’s claims are not yet ripe for federal habeas consideration. 7 See 28 U.S.C. § 2254(a) (“a district court shall entertain an application for a writ of habeas corpus 8 in behalf of a person in custody pursuant to the judgment of a State court . . .”). Here, it does not 9 appear that petitioner is in custody pursuant to a final state court judgment. Nor is there any 10 indication that he has presented any of his claims to the California Supreme Court. See 28 U.S.C. 11 § 2254(b)(1)((A). Petitioner may address these issues in any objections he chooses to file to these 12 findings and recommendations. 13 It is ORDERED that the Clerk of Court shall assign a district judge to this action. 14 Further, it is RECOMMENDED that the petition be DISMISSED for failure to state a 15 cognizable federal habeas claim. 16 These findings and recommendations are submitted to the United States District Judge 17 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 18 after being served with these findings and recommendations, any party may file written 19 objections with the court and serve a copy on all parties. Such a document should be captioned 20 “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 21 objections shall be served and filed within fourteen days after service of the objections. The 22 parties are advised that failure to file objections within the specified time may waive the right to 23 appeal the District Court’s order. Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez 24 v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 25 26 27 28 2 1 2 IT IS SO ORDERED. 3 Dated: 4 5 November 13, 2023 JEREMY D. PETERSON UNITED STATES MAGISTRATE JUDGE 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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