(HC)Fischer v. Sherman, No. 2:2016cv01882 - Document 8 (E.D. Cal. 2016)

Court Description: ORDER; FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kendall J. Newman on 10/27/16 ORDERING that petitioner is granted leave to proceed in forma pauperis; The Clerk of the Court is directed to serve a copy of these findings and recommendati ons together with a copy of the petition filed in the instant case on the Attorney General of the State of California; The Clerk of the Court is directed to assign a district judge to this action; Petitioner's motion for appointment of counsel ( ECF No. 3 ) is DENIED; and it is RECOMMENDED that petitioner's application for a writ of habeas corpus be dismissed for failure to exhaust state remedies. Randomly assigned and referred to Judge Morrison C. England, Jr.; Objections to F&R due within 14 days.(Dillon, M)

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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 JAMES DAVID FISCHER, 12 No. 2: 16-cv-1882 KJN P Petitioner, 13 v. 14 STU SHERMAN, 15 ORDER AND FINDINGS AND RECOMMENDATIONS Respondents. 16 Petitioner, a state prisoner proceeding pro se, has filed an application for a writ of habeas 17 18 corpus pursuant to 28 U.S.C. § 2254 together with a request to proceed in forma pauperis 19 pursuant to 28 U.S.C. § 1915. Petitioner submitted a declaration that makes the showing required 20 by § 1915(a). Accordingly, the request to proceed in forma pauperis is granted. 28 U.S.C. 21 § 1915(a). The exhaustion of state court remedies is a prerequisite to the granting of a petition for 22 23 writ of habeas corpus. 28 U.S.C. § 2254(b)(1). If exhaustion is to be waived, it must be waived 24 explicitly by respondent’s counsel. 28 U.S.C. § 2254(b)(3).1 A waiver of exhaustion, thus, may 25 not be implied or inferred. A petitioner satisfies the exhaustion requirement by providing the 26 highest state court with a full and fair opportunity to consider all claims before presenting them to 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 1 the federal court. Picard v. Connor, 404 U.S. 270, 276 (1971); Middleton v. Cupp, 768 F.2d 2 1083, 1086 (9th Cir. 1985), cert. denied, 478 U.S. 1021 (1986). 3 After reviewing the petition for habeas corpus, the court finds that petitioner has failed to 4 exhaust state court remedies. The claims have not been presented to the California Supreme 5 Court. Further, there is no allegation that state court remedies are no longer available to 6 petitioner. Accordingly, the petition should be dismissed without prejudice.2 7 8 Petitioner has also requested the appointment of counsel. Because the undersigned recommends that this action be dismissed, the motion for appointment of counsel is denied. 9 Good cause appearing, IT IS HEREBY ORDERED that: 10 1. Petitioner is granted leave to proceed in forma pauperis; 11 2. The Clerk of the Court is directed to serve a copy of these findings and 12 recommendations together with a copy of the petition filed in the instant case on the Attorney 13 General of the State of California; 14 3. The Clerk of the Court is directed to assign a district judge to this action; 15 4. Petitioner’s motion for appointment of counsel (ECF No. 3) is denied; and 16 IT IS HEREBY RECOMMENDED that petitioner’s application for a writ of habeas 17 corpus be dismissed for failure to exhaust state remedies. 18 These findings and recommendations will be submitted to the United States District Judge 19 assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 20 after being served with these findings and recommendations, petitioner may file written 21 objections with the court. The document should be captioned “Objections to Findings and 22 //// 23 //// 24 //// 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 1 Recommendations.” Petitioner is advised that failure to file objections within the specified 2 time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 3 (9th Cir. 1991). 4 Dated: October 27, 2016 5 6 7 Fisc1882.103 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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