Hares Ahmadzai v. Alex Villanueva, No. 2:2019cv01718 - Document 14 (C.D. Cal. 2019)
Court Description: ORDER ACCEPTING FINDINGS AND RECOMMENDATIONS of United States Magistrate Judge by Judge Christina A. Snyder. IT IS THEREFORE ORDERED that: 1. Petitioner's request for discovery is denied; and 2. Judgment shall be entered dismissing this action without prejudice 8 . (mba)
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Hares Ahmadzai v. Alex Villanueva Doc. 14 O 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 WESTERN DIVISION 11 HARES AHMADZAI, 12 13 14 15 Petitioner, v. ALEX VILLANUEVA, Respondent. 16 17 18 ) ) ) ) ) ) ) ) ) ) ) ) ) No. 2:19-cv-01718-CAS (JDE) ORDER ACCEPTING FINDINGS AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE Pursuant to 28 U.S.C. § 636, the Court has reviewed the Petition (Dkt. 19 1), the Order to Show Cause (Dkt. 3, “OSC”), Petitioner’s Response to the 20 OSC (Dkt. 5), the Report and Recommendation of the United States 21 Magistrate Judge (Dkt. 8, “R&R”), and the Objection to the R&R filed by 22 Petitioner (Dkt. 13). 23 24 25 26 27 28 In his Objections, Petitioner contends, among other things, that he exhausted all state remedies, citing to a Petition for Review submitted to the California Supreme Court. However, the California Supreme Court's response, which is attached to Petitioner's Objections, reflects that the state supreme court returned this petition for review on April 23, 2019 as unfiled because it Dockets.Justia.com 1 was untimely and the state supreme court "lost jurisdiction to act on any 2 petition for review after February 21, 2019." Dkt. 13-1 at 16 (CM/ECF 3 pagination). The California Supreme Court's online docket confirms Petitioner 4 has not filed any pleadings in that court since 2011. See Appellate Courts Case 5 Information at https://appellatecases.courtinfo.ca.gov. Exhaustion requires 6 that the petitioner’s claims be fairly presented to the state courts and be 7 disposed of on the merits by the highest court of the state. James v. Borg, 24 8 F.3d 20, 24 (9th Cir. 1994); Carothers v. Rhay, 594 F.2d 225, 228 (9th Cir. 9 1979). Because the California Supreme Court did not consider the Petition for 10 11 12 13 14 15 16 17 18 19 20 21 22 23 Review on the merits and instead, returned it as unfiled, Petitioner has not exhausted his state remedies. Further, as noted in the R&R, failure to exhaust was one of, but not the only, the reason why the case did not fall into the “special circumstances” exception to Younger abstention under Braden v. 30th Judicial Circuit Court of Ky., 410 U.S. 484, 488-93 (1973). See R&R at 5-6. Having engaged in a de novo review of all of the portions of the R&R to which objections have been made, the Court concurs with and accepts the findings and recommendation of the Magistrate Judge. IT IS THEREFORE ORDERED that: 1. Petitioner’s request for discovery is denied; and 2. Judgment shall be entered dismissing this action without prejudice. Dated: June 4, 2019 24 __ CHRISTINA A. SNYDER United States District Judge 25 26 27 28 2
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