(HC) Tankins v. Superior Court of California County of Sacramento, No. 2:2016cv02470 - Document 9 (E.D. Cal. 2016)

Court Description: ORDER signed by Magistrate Judge Kendall J. Newman on 12/12/16 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 recommendations together with a copy of the petition filed in the instant case on the Attorney General of the State of California; and petitioner's application for a writ of habeas corpus is DISMISSED for failure to exhaust state remedies. (cc Michael Farrell)(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 MAHKUSAH IMMANUEL TANKINS, 12 13 14 No. 2: 16-cv-2470 KJN P Petitioner, v. ORDER SUPERIOR COURT, 15 Respondents. 16 17 Petitioner, a state prisoner proceeding pro se, has filed an application for a writ of habeas 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). 22 Petitioner has consented to the jurisdiction of the undersigned. (ECF No. 6.) 23 Petitioner requests that his sentence be reduced pursuant to Proposition 47 and California 24 Penal Code § 1170.18. Proposition 47, enacted in November 2014, “makes certain drug – and 25 theft – related offenses misdemeanors, unless they were committed by certain ineligible 26 defendants.” People v. Rivera, 233 Cal.App.4th 1085, 1089 (2015). 27 28 The exhaustion of state court remedies is a prerequisite to the granting of a petition for writ of habeas corpus. 28 U.S.C. § 2254(b)(1). If exhaustion is to be waived, it must be waived 1 1 explicitly by respondent’s counsel. 28 U.S.C. § 2254(b)(3).1 A waiver of exhaustion, thus, may 2 not be implied or inferred. A petitioner satisfies the exhaustion requirement by providing the 3 highest state court with a full and fair opportunity to consider all claims before presenting them to 4 the federal court. Picard v. Connor, 404 U.S. 270, 276 (1971); Middleton v. Cupp, 768 F.2d 5 1083, 1086 (9th Cir. 1985), cert. denied, 478 U.S. 1021 (1986). 6 After reviewing the petition for habeas corpus, the court finds that petitioner has failed to 7 exhaust state court remedies. The claims have not been presented to the California Supreme 8 Court. Further, there is no allegation that state court remedies are no longer available to 9 petitioner. Accordingly, the petition should be dismissed without prejudice.2 10 Good cause appearing, IT IS HEREBY ORDERED that: 11 1. Petitioner is granted leave to proceed in forma pauperis; 12 2. The Clerk of the Court is directed to serve a copy of these findings and 13 recommendations together with a copy of the petition filed in the instant case on the Attorney 14 General of the State of California; and 3. Petitioner’s application for a writ of habeas corpus is dismissed for failure to exhaust 15 16 state remedies. 17 Dated: December 12, 2016 18 19 20 Tank2470.103 21 22 23 1 24 A petition may be denied on the merits without exhaustion of state court remedies. 28 U.S.C. § 2254(b)(2). 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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