(HC) Stoops v. State of California, No. 2:2016cv00021 - Document 6 (E.D. Cal. 2016)

Court Description: ORDER, FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Gregory G. Hollows on 1/29/16 ORDERING that the Clerk of the Court is directedto serve a copy of these findings and recommendations together with a copy of the petition filed in the insta nt case on the Attorney General of the State of California; and it is RECOMMENDED that petitioners application for a writ of habeas corpus be dismissed for failure to exhaust state remedies. Referred to Judge John A. Mendez; Objections to F&R due within 14 days. (cc Michael Farrell)(Dillon, M)

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(HC) Stoops v. State of California Doc. 6 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 RANDY STOOPS, 12 Petitioner, 13 14 No. 2:16-cv-0021 JAM GGH P v. ORDER AND FINDINGS AND RECOMMENDATIONS STATE OF CALIFORNIA, 15 Respondent. 16 17 Petitioner, a state prisoner proceeding pro se, has filed an application for a writ of habeas 18 19 corpus pursuant to 28 U.S.C. § 2254 together with a request to proceed in forma pauperis 20 pursuant to 28 U.S.C. § 1915. The court will not rule on the in forma pauperis application. The exhaustion of state court remedies is a prerequisite to the granting of a petition for 21 22 writ of habeas corpus. 28 U.S.C. § 2254(b)(1). If exhaustion is to be waived, it must be waived 23 explicitly by respondent’s counsel. 28 U.S.C. § 2254(b)(3).1 A waiver of exhaustion, thus, may 24 not be implied or inferred. A petitioner satisfies the exhaustion requirement by providing the 25 highest state court with a full and fair opportunity to consider all claims before presenting them to 26 the federal court. Picard v. Connor, 404 U.S. 270, 276 (1971); Middleton v. Cupp, 768 F.2d 27 28 1 A petition may be denied on the merits without exhaustion of state court remedies. 28 U.S.C. § 2254(b)(2). 1 Dockets.Justia.com 1 1083, 1086 (9th Cir. 1985), cert. denied, 478 U.S. 1021 (1986). 2 After reviewing the petition for habeas corpus, the court finds that petitioner has failed to 3 exhaust state court remedies. The claims have not been presented to the California Supreme 4 Court either on direct appeal or through the state habeas corpus process. Further, there is no 5 allegation that state court remedies are no longer available to petitioner. Accordingly, the petition 6 should be dismissed without prejudice.2 7 Good cause appearing, IT IS HEREBY ORDERED that: the Clerk of the Court is directed 8 to serve a copy of these findings and recommendations together with a copy of the petition filed 9 in the instant case on the Attorney General of the State of California; and 10 11 IT IS HEREBY RECOMMENDED that petitioner’s application for a writ of habeas corpus be dismissed for failure to exhaust state remedies. 12 These findings and recommendations will be submitted to the United States District Judge 13 assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 14 after being served with these findings and recommendations, petitioner may file written 15 objections with the court. The document should be captioned “Objections to Findings and 16 Recommendations.” Petitioner is advised that failure to file objections within the specified 17 time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 18 (9th Cir. 1991). 19 Dated: January 29, 2016 20 /s/ Gregory G. Hollows 21 UNITED STATES MAGISTRATE JUDGE 22 23 24 GGH:076/Stoo0021.103 25 2 26 27 28 Petitioner is cautioned that the habeas corpus statute imposes a one year statute of limitations for filing non-capital habeas corpus petitions in federal court. In most cases, the one year period will start to run on the date on which the state court judgment became final by the conclusion of direct review or the expiration of time for seeking direct review, although the statute of limitations is tolled while a properly filed application for state post-conviction or other collateral review is pending. 28 U.S.C. § 2244(d). 2

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