(HC) Beltran v. Montgomery, No. 1:2015cv01858 - Document 9 (E.D. Cal. 2016)

Court Description: ORDER Withdrawing 6 FINDINGS and RECOMMENDATIONS Recommending Dismissal of 1 Petition for Failure to Exhaust State Remedies, signed by Magistrate Judge Sheila K. Oberto on 2/29/16. (Verduzco, M)

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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 JAIME BELTRAN, 10 11 12 13 14 Petitioner, v. Case No. 1:15-cv-01858-DAD-SKO HC ORDER WITHDRAWING FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSAL OF THE PETITION FOR FAILURE TO EXHAUST STATE REMEDIES WARREN L. MONTGOMERY, Warden, Calipatria State Prison, (Doc. 6) Respondent. 15 Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus 16 pursuant to 28 U.S.C. § 2254. The Court referred the matter to the undersigned Magistrate Judge 17 pursuant to 28 U.S.C. § 636(b)(1) and Local Rules 302 and 304. 18 On December 30, 2015, the undersigned issued findings and recommendation that the Court 19 dismiss the petition because of Petitioner's failure to exhaust state remedies. On February 29, 2016, 20 Petitioner notified the Court that the California Supreme Court denied his petition for review on 21 February 17, 2016. 22 Generally, a petitioner must have fully exhausted state remedies at the time he files for 23 federal habeas relief. 28 U.S.C. § 2254(b); Rose v. Lundy, 455 U.S. 509, 515-20 (1982). A claim is 24 exhausted once it has been fairly presented to the state's highest court. Schwartzmiller v. Gardner, 25 752 F.2d 1341, 1344 (9th Cir. 1984). Exhaustion is not jurisdictional, however, but is a matter of 26 federal-state comity. Id. at 1345. As a result, "an appellate court may give relief if state remedies 27 are exhausted by the time it acts, even if these remedies were not exhausted when the habeas corpus 28 1 1 petition was filed." Id.; Buffalo v. Sunn, 854 F.2d 1158, 1163 (9th Cir. 1988). When the highest state 2 court has acted on the claim, the barrier to federal habeas consideration of the claim's substantive 3 merits is removed, and the federal court may proceed to consider it. Sharpe v. Buchanan, 317 U.S. 4 238, 239 (1942). Petitioner has now fully exhausted his state court remedies. Accordingly, the undersigned 5 6 hereby WITHDRAWS the findings and recommendations filed on December 30, 2015. 7 8 9 IT IS SO ORDERED. Dated: February 29, 2016 /s/ Sheila K. Oberto UNITED STATES MAGISTRATE JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2

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