Brown v. Warden

Filing 8

ORDER DISMISSING CASE WITHOUT PREJUDICE AND GRANTING LEAVE TO PROCEED IN FORMA PAUPERIS 7 . Motions terminated: 7 Motion for Leave to Proceed in forma pauperis filed by William Brown, II. Signed by Magistrate Judge Donna M. Ryu on 2/3/17. (ig, COURT STAFF) (Filed on 2/3/2017)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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WILLIAM BROWN,
Petitioner,

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v.

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ORDER OF DISMISSAL WITHOUT
PREJUDICE

M. ELIOT SPEARMAN, Warden,1
Respondent.

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United States District Court
Northern District of California

Case No. 16-cv-06978-DMR (PR)

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Petitioner has filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254. Dkt. 1.

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On January 27, 2017, Petitioner filed his motion for leave to proceed in forma pauperis. Dkt. 7.

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This action has been assigned to the undersigned magistrate judge. On December 6, 2016,

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Petitioner consented to magistrate judge jurisdiction in this matter. Dkt. 3. Pursuant to 28 U.S.C.

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§ 636(c), with written consent of all parties, a magistrate judge may conduct all proceedings in a

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case, including entry of judgment.2 Appeal will be directly to the United States Court of Appeals

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for the Ninth Circuit. See 28 U.S.C. § 636(c)(3).

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In the instant petition, Petitioner admits that he did not exhaust his state remedies by

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presenting his claims to the highest level of review—the California Supreme Court—before filing

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his petition. Dkt. 1 at 3, 5, 7, 11. Petitioner alleges that due to his transfer to High Desert State

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M. Eliot Spearman, the current warden of the institution where Petitioner is being
housed, has been substituted as Respondent pursuant to Rule 25(d) of the Federal Rules of Civil
Procedure.
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A magistrate judge generally must obtain the consent of the parties to enter dispositive
rulings and judgments in a civil case. See 28 U.S.C. § 636(c)(1). However, in cases such as this
one, where the petitioner has consented but the respondent has not been served, “all parties have
consented pursuant to 28 U.S.C. § 636(c)(1),” and a magistrate judge therefore “‘may conduct any
or all proceedings in a jury or nonjury civil matter and order the entry of judgment in the case.’”
Gaddy v. McDonald, No. CV 11-08271 SS, 2011 WL 5515505, at *1 n.2 (C.D. Cal. Nov. 9, 2011)
(quoting § 636(c)(1)) (citing United States v. Real Property, 135 F.3d 1312, 1317 (9th Cir. 1995)).

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Prison, he was not informed in a timely manner that his judgment of conviction was affirmed by

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the California Court of Appeal on August 18, 2016. Id. at 7-9. Thus, Petitioner attempted to

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explain his “situation” involving the aforementioned delayed notice when he filed an untimely

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petition for review in the California Supreme Court, which was received on October 14, 2016. Id.

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at 9, 36. In a letter dated October 14, 2016, the California Supreme Court informed Petitioner that

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it lacked jurisdiction over his petition for review because he had filed it after the one-month

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deadline. Id. at 36 (citing Cal. Rules. of Court 8.500(e)). However, although it lost jurisdiction to

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act on a petition for review of the Court of Appeal’s decision, the California Supreme Court has

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original jurisdiction to review a petition for a writ of habeas corpus. There is nothing in the record

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United States District Court
Northern District of California

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indicating whether Petitioner has filed a state habeas petition in the California Supreme Court.
Prisoners in state custody who wish to challenge in federal habeas proceedings either the fact

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or length of their confinement are first required to exhaust state judicial remedies by presenting the

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highest state court available with a fair opportunity to rule on the merits of each and every claim they

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seek to raise in federal court. See 28 U.S.C. § 2254(b), (c); Rose v. Lundy, 455 U.S. 509, 515-16

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(1982). If available state remedies have not been exhausted as to all claims, the district court must

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dismiss the petition. Id. at 510; Guizar v. Estelle, 843 F.2d 371, 372 (9th Cir. 1988). A dismissal

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solely for failure to exhaust is not a bar to returning to federal court after exhausting available state

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remedies. See Trimble v. City of Santa Rosa, 49 F.3d 583, 586 (9th Cir. 1995).

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Because nothing in the record shows that Petitioner presented his claims to the state supreme

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court for review in a state habeas petition, his federal petition is unexhausted and must be

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DISMISSED. This dismissal is without prejudice to Petitioner returning to state court to exhaust his

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state remedies and then filing a new federal habeas corpus petition.3 Should he do so, he is advised

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to file his new federal habeas corpus petition as soon as possible after his state court proceedings

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have concluded. The court makes no ruling at this time on the issue of the timeliness of any future

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federal petition.

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Petitioner seeks the court’s permission to exhaust his state remedies in the California
Supreme Court. Dkt. 1 at 5, 7, 11. Petitioner need not seek such permission and may file his state
habeas petition directly in the California Supreme Court.
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Leave to proceed in forma pauperis is GRANTED. Dkt. 7. The Clerk of the Court shall
terminate any pending motions and close the file.

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This Order terminates Docket No. 7.

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IT IS SO ORDERED.

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Dated: February 3, 2017

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DONNA M. RYU
United States Magistrate Judge

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United States District Court
Northern District of California

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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WILLIAM BROWN,

Case No. 4:16-cv-06978-DMR

Plaintiff,
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v.

CERTIFICATE OF SERVICE

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WARDEN,
Defendant.

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I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S.
District Court, Northern District of California.

United States District Court
Northern District of California

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That on February 3, 2017, I SERVED a true and correct copy(ies) of the attached, by
placing said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by
depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery
receptacle located in the Clerk's office.

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William Brown ID: AS7822
High Desert State Prison
P.O. Box 3030
Susanville, CA 96127

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Dated: February 3, 2017

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Susan Y. Soong
Clerk, United States District Court

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By:________________________
Ivy Lerma Garcia, Deputy Clerk to the
Honorable DONNA M. RYU

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