(HC)Dawson v. Johnson, No. 1:2013cv01709 - Document 24 (E.D. Cal. 2014)
Court Description: ORDER Granting Petitioner's Request to File an Additional Document re 23 ; FINDINGS and RECOMMENDATIONS to Grant Respondent's 15 Motion to Dismiss the Petition; FINDINGS and RECOMMENDATIONS to Dismiss the 1 Petition for Writ of Habeas Corpus without Prejudice, Decline to Issue Certificate of Appealability, and Direct Clerk to Close Case, signed by Magistrate Judge Sheila K. Oberto on 07/07/14. Referred to Judge Ishii. Thirty-Day Objections Deadline. (Gonzalez, R)
Download PDF
<![CDATA[
1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 11 AUDRA DAWSON, Case No. 1:13-cv-01709-AWI-SKO-HC 12 ORDER GRANTING PETITIONER’S REQUEST TO FILE AN ADDITIONAL DOCUMENT (DOC. 23) Petitioner, 13 14 15 FINDINGS AND RECOMMENDATIONS TO GRANT RESPONDENT’S MOTION TO DISMISS THE PETITION (DOC. 15) v. 16 17 18 19 WARDEN D. K. JOHNSON, Respondent. OBJECTIONS DEADLINE: THIRTY (30) DAYS 20 21 22 23 24 25 26 27 28 FINDINGS AND RECOMMENDATIONS TO DISMISS THE PETITION FOR WRIT OF HABEAS CORPUS WITHOUT PREJUDICE (DOC. 1), DECLINE TO ISSUE A CERTIFICATE OF APPEALABILITY, AND DIRECT THE CLERK TO CLOSE THE CASE Petitioner is a state prisoner proceeding pro se and in forma pauperis with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. The matter has been referred to the Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1) and Local Rules 302 through 304. Pending before the Court is Respondent’s motion to dismiss the petition, which was filed on March 3, 2014, and was supported by documents lodged with the Court. Petitioner filed an opposition to the motion on March 27, 2014, and Respondent filed a timely reply on 1 1 April 14, 2014. On May 24, 2014, Petitioner filed a motion for leave to submit 2 3 an additional document. Although the time for filing opposition to 4 the request for leave has passed, no opposition or notice of non5 opposition has been filed. The Court notes that the document in 6 question was already part of the record submitted by Respondent in 7 support of the motion. Accordingly, it is ORDERED that Petitioner’s request to file 8 9 an additional document, namely, a copy of an order from the 10 California Supreme Court, is GRANTED. 11 I. Proceeding by a Motion to Dismiss 12 Rule 4 of the Rules Governing Section 2254 Cases in the United 13 States District Courts (Habeas Rules) allows a district court to 14 dismiss a petition if it “plainly appears from the face of the 15 petition and any exhibits annexed to it that the petitioner is not 16 entitled to relief in the district court....” 17 The Ninth Circuit has allowed respondents to file motions to 18 dismiss pursuant to Rule 4 instead of answers if the motion to 19 dismiss attacks the pleadings by claiming that the petitioner has 20 failed to exhaust state remedies. See, e.g., O’Bremski v. Maass, 21 915 F.2d 418, 420 (9th Cir. 1990) (using Rule 4 to evaluate a motion 22 to dismiss a petition for failure to exhaust state remedies). Thus, 23 a respondent may file a motion to dismiss after the Court orders the 24 respondent to respond, and the Court should use Rule 4 standards to 25 review a motion to dismiss filed before a formal answer. 26 Hillery, 533 F. Supp. at 1194 & n.12. 27 /// 28 /// 2 See, 1 Here, Respondent’s motion to dismiss addresses Petitioner’s 2 failure to exhaust state court remedies. The material facts 3 pertinent to the motion are contained in copies of the official 4 records of state judicial proceedings provided by the parties and as 5 to which there is no factual dispute. Accordingly, the Court will 6 review Respondent’s motion to dismiss pursuant to its authority 7 under Rule 4. 8 II. Background 9 Respondent moves to dismiss the petition filed on October 24, 10 2013, because of the five grounds for relief alleged by Petitioner. 11 Grounds two through five were not exhausted, and the first ground 12 was not exhausted insofar as it was based on federal law. 13 In the petition, Petitioner, an inmate of the Central 14 California Women’s Facility (CCWF), alleges she is serving a 15 sentence of twenty-five years to life plus ten years imposed by the 16 Superior Court of the State of California, County of Fresno (FCSC), 17 pursuant to her conviction on December 12, 2011, of second degree 18 robbery with enhancements. Petitioner raises the following claims: 19 1) whether the trial court abused its discretion in denying 20 Petitioner’s motion to strike a prior conviction pursuant to Cal. 21 Pen. Code § 1385 and violated Apprendi v. New Jersey; 2) whether the 22 fact that the prior convictions used to enhance Petitioner’s 23 sentence were ineligible under state statutes and case law for such 24 use violated Petitioner’s rights under Apprendi v. New Jersey; 3) 25 whether Petitioner should have received a grand theft conviction 26 because a co-defendant received such a conviction, there were many 27 discrepancies in witnesses’ testimony, and the gender of a 911 28 caller was questionable; 4) whether the trial court violated 3 1 Petitioner’s Sixth Amendment rights when it allowed a “Lesser 2 include” for a co-defendant but not for Petitioner; and 5) whether a 3 parole violation from 2007 may enhance a sentence as it did in 4 Petitioner’s case when she was sentenced on March 1, 2012. Before Respondent appeared in the action, Petitioner consented 5 1 6 to the jurisdiction of the Magistrate Judge. After petitioner 7 responded to an order to show cause why Petitioner’s state law 8 claims should not be dismissed, the Court dismissed on January 3, 9 2014, Petitioner’s first, second, and fifth claims without leave to 2 10 amend to the extent they were based solely on state law. However, 11 the claims based on federal law that raised violations of rights 12 protected by the Constitution remained in the petition before the 13 Court. (Doc. 9, 5.) The documentation submitted by Respondent in support of the 14 15 motion to dismiss shows that Petitioner was sentenced on March 1, 16 2012, when the trial court struck three prior prison term 17 enhancements and denied Petitioner’s Romero motion which sought 18 dismissal of one of her prior convictions or “strikes” pursuant to 19 Cal. Pen. Code § 1385. (LD 4, 2.)3 Petitioner filed an appeal in the Court of Appeal of the State 20 21 of California, Fifth Appellate District (CCA) in case number 22 23 1 When Respondent later appeared, Respondent declined to consent. The first claim included not only a challenge pursuant to Apprendi but also to the trial court’s discretionary denial of a motion to dismiss prior convictions for purposes of sentencing that was made pursuant to a state statute, Cal. Pen. Code § 1385. Petitioner’s second claim alleged that Petitioner suffered a violation of rights protected by Apprendi based on the fact that under state law, the prior convictions were ineligible for use in sentencing. Petitioner’s fifth claim that a parole violation could not be used to enhance his sentence appeared to be based on state law standards regarding matters eligible for use to enhance a sentence. 2 24 25 26 27 28 3 “LD” refers to documents lodged in support of the motion to dismiss. 4 1 F064491. In her opening brief, Petitioner raised a single issue: 2 whether the trial court abused its discretion under Cal. Pen. Code 3 § 1385 when it declined to strike one of Petitioner’s prior 4 convictions. (LD 1 at i, 7-12.) Similarly, the issue as framed in 5 Petitioner’s reply brief before the CCA was whether the trial court 6 had abused its discretion under § 1385 because it failed 1) to 7 consider that two strike priors were committed during an aberrant 8 period of time in the Petitioner’s life, and 2) to give preponderant 9 weight to Petitioner’s background, character, and prospects. 10 at i, 1-2.) (LD 3 The CCA’s unpublished opinion affirming the judgment 11 filed on July 30, 2013, addressed only the issue of whether the 12 sentencing court had erred or abused its discretion in denying the 13 Romero motion. 14 (LD 4 at 2, 5-10.) Petitioner filed a petition for review in the California 15 Supreme Court, case number S212980, on August 30, 2013. She raised 16 her claim that the denial of the Romero motion was an abuse of 17 discretion. She also raised the following issues that had not been 18 raised in her direct appeal: 1) whether the trial court’s denial of 19 the Romero motion violated Apprendi v. New Jersey; 2) whether 20 Apprendi was violated by the sentencing court’s enhancement of 21 Petitioner’s sentence with prior convictions that Petitioner claimed 22 were ineligible under specified state statutes [because the prior 23 was a parole violation, not within time limits, or did not involve 24 injuries to a victim]; 3) whether Petitioner should have been 25 convicted of grand theft or a more “srikable” offense, and whether 26 two co-defendants in the same case could receive “different 27 convictions/same elements/same incident,” where there were 28 discrepancies in witness and/or victim testimony as to Petitioner’s 5 1 intent to harm anyone (LD 5 at form p. 3); and 4) whether 2 Petitioner’s Sixth Amendment right to a fair trial was violated by 3 the giving of a “Lesser include” (id.) for a co-defendant but not 4 for Petitioner. (LD 5.) On October 2, 2013, the petition was 5 denied without a statement of reasoning or citation of authority. 6 (LD 6.) 7 It is undisputed that Petitioner never filed a habeas petition 8 in state court. 9 10 11 III. A. Exhaustion of State Court Remedies Legal Standards A petitioner who is in state custody and wishes to challenge 12 collaterally a conviction by a petition for writ of habeas corpus 13 must exhaust state judicial remedies. 28 U.S.C. ' 2254(b)(1). The 14 exhaustion doctrine is based on comity to the state court and gives 15 the state court the initial opportunity to correct the state's 16 alleged constitutional deprivations. Coleman v. Thompson, 501 U.S. 17 722, 731 (1991); Rose v. Lundy, 455 U.S. 509, 518 (1982); Buffalo v. 18 Sunn, 854 F.2d 1158, 1162-63 (9th Cir. 1988). 19 A petitioner can satisfy the exhaustion requirement by 20 providing the highest state court with the necessary jurisdiction a 21 full and fair opportunity to consider each claim before presenting 22 it to the federal court, and demonstrating that no state remedy 23 remains available. Picard v. Connor, 404 U.S. 270, 275-76 (1971); 24 Johnson v. Zenon, 88 F.3d 828, 829 (9th Cir. 1996). A federal court 25 will find that the highest state court was given a full and fair 26 opportunity to hear a claim if the petitioner has presented the 27 highest state court with the claim's factual and legal basis. 28 Duncan v. Henry, 513 U.S. 364, 365 (1995) (legal basis); Kenney v. 6 1 Tamayo-Reyes, 504 U.S. 1, 9-10 (1992), superceded by statute as 2 stated in Williams v. Taylor, 529 U.S. 362 (2000) (factual basis). 3 Additionally, the petitioner must have specifically told the 4 state court that he was raising a federal constitutional claim. 5 Duncan, 513 U.S. at 365-66; Lyons v. Crawford, 232 F.3d 666, 669 6 (9th Cir. 2000), amended, 247 F.3d 904 (9th Cir. 2001); Hiivala v. 7 Wood, 195 F.3d 1098, 1106 (9th Cir. 1999); Keating v. Hood, 133 F.3d 8 1240, 1241 (9th Cir. 1998). In Duncan, the United States Supreme 9 Court reiterated the rule as follows: 10 11 12 13 14 15 16 17 18 19 In Picard v. Connor, 404 U.S. 270, 275...(1971), we said that exhaustion of state remedies requires that petitioners "fairly presen[t]" federal claims to the state courts in order to give the State the "'opportunity to pass upon and correct= alleged violations of the prisoners' federal rights" (some internal quotation marks omitted). If state courts are to be given the opportunity to correct alleged violations of prisoners' federal rights, they must surely be alerted to the fact that the prisoners are asserting claims under the United States Constitution. If a habeas petitioner wishes to claim that an evidentiary ruling at a state court trial denied him the due process of law guaranteed by the Fourteenth Amendment, he must say so, not only in federal court, but in state court. 20 Duncan, 513 U.S. at 365-366. The Ninth Circuit examined the rule 21 further in Lyons v. Crawford, 232 F.3d 666, 668-69 (9th Cir. 2000), 22 as amended by Lyons v. Crawford, 247 F.3d 904, 904-05 (9th Cir. 23 2001), stating: 24 25 26 27 28 Our rule is that a state prisoner has not "fairly presented" (and thus exhausted) his federal claims in state court unless he specifically indicated to that court that those claims were based on federal law. See, Shumway v. Payne, 223 F.3d 982, 987-88 (9th Cir. 2000). Since the Supreme Court's decision in Duncan, this court has held that the petitioner must make the federal basis of the claim explicit either by citing 7 1 2 3 4 5 6 7 8 9 10 federal law or the decisions of federal courts, even if the federal basis is "self-evident," Gatlin v. Madding, 189 F.3d 882, 889 (9th Cir. 1999) (citing Anderson v. Harless, 459 U.S. 4, 7... (1982), or the underlying claim would be decided under state law on the same considerations that would control resolution of the claim on federal grounds, see, e.g., Hiivala v. Wood, 195 F.3d 1098, 1106-07 (9th Cir. 1999); Johnson v. Zenon, 88 F.3d 828, 830-31 (9th Cir. 1996); Crotts, 73 F.3d at 865. ... In Johnson, we explained that the petitioner must alert the state court to the fact that the relevant claim is a federal one without regard to how similar the state and federal standards for reviewing the claim may be or how obvious the violation of federal law is. 11 Lyons v. Crawford, 232 F.3d 666, 668-69 (9th Cir. 2000), as amended 12 by Lyons v. Crawford, 247 F.3d 904, 904-05 (9th Cir. 2001). 13 Where none of a petitioner=s claims has been presented to the 14 highest state court as required by the exhaustion doctrine, the 15 Court must dismiss the petition. Raspberry v. Garcia, 448 F.3d 16 1150, 1154 (9th Cir. 2006); Jiminez v. Rice, 276 F.3d 478, 481 (9th 17 Cir. 2001). The authority of a court to hold a mixed petition in 18 abeyance pending exhaustion of the unexhausted claims has not been 19 extended to petitions that contain no exhausted claims. 20 448 F.3d at 1154. Raspberry, Although non-exhaustion of state court remedies 21 is an affirmative defense, it is the petitioner’s burden to prove 22 that state judicial remedies were properly exhausted. 23 2254(b)(1)(A); 28 U.S.C. § Darr v. Burford, 339 U.S. 200, 218-19 (1950), 24 overruled in part on other grounds in Fay v. Noia, 372 U.S. 391 25 (1963); Cartwright v. Cupp, 650 F.2d 1103, 1104 (9th Cir. 1981). 26 available state court remedies have not been exhausted as to all 27 claims, a district court must dismiss a petition. 28 455 U.S. 509, 515-16 (1982). 8 Rose v. Lundy, If 1 2 B. Fair Presentation Respondent argues that Petitioner did not exhaust state court 3 remedies as to the issues raised by Petitioner for the first time in 4 the petition for review filed in the CSC. The premise of 5 Respondent’s argument is that the claims were not fairly presented 6 to the state courts because pursuant to state procedural law, and 7 the only cognizable issues in a petition for review filed in the 8 California Supreme Court are issues that were raised in appellate 9 proceedings before the state’s intermediate appellate court, the 10 California Court of Appeal. Thus, the new issues were not properly 11 presented to the state courts. 12 A petitioner generally satisfies the exhaustion requirement by 13 fully and fairly presenting the substance of the same claim to the 14 highest state court in a manner sufficient to give the state court a 15 fair opportunity to consider the claim. Picard v. Connor, 404 U.S. 16 270, 275-78 (1971); Scott v. Schriro, 567 F.3d 573, 582 (9th Cir. 17 2009). The substance of the claim is fairly presented where the 18 pleading states the federal legal theory or basis of the claim and 19 the facts entitling the Petitioner to relief. See, Picard v. 20 Connor, 404 U.S. at 277-78. 21 A petitioner shall not be deemed to have exhausted the remedies 22 available in the state courts within the meaning of § 2254 “if he 23 has the right under the law of the State to raise, by any available 24 procedure, the question presented.” 28 U.S.C. § 2254(c). Thus, a 25 petitioner fully and fairly presents a claim to the state courts if 26 he presents the claim to the correct forum and in conformity with 27 proper procedures. See, Castille v. Peoples, 489 U.S. 346, 351 28 (1989) (claim first presented to the highest state court in a 9 1 petition for allocatur was not fairly presented where under state 2 law review of the merits was not a matter of right, but would be 3 granted in the court’s sound discretion only in the presence of 4 special and important reasons). To exhaust a federal habeas claim, 5 a petitioner on direct appeal must raise it in each appropriate 6 state court, including the state intermediate court of appeal in 7 addition to the state’s highest court. 8 27, 29 (2004). Baldwin v. Reese, 541 U.S. Raising a federal claim for the first time in an 9 application for discretionary review to a state’s highest court is 10 insufficient. 11 Casey v. Moore, 386 F.3d 896, 916-18 (9th Cir. 2004). Here, Petitioner did not raise the additional claims before the 12 CCA; instead, Petitioner first presented the claims to the state’s 13 highest court on discretionary review. Cal. Rules of Court, Rule 14 8.500(c)(1) provides limits on the California Supreme Court’s review 15 of appellate decisions by providing that “[a]s a policy matter, on 16 petition for review the Supreme Court normally will not consider an 17 issue that the petitioner failed to timely raise in the Court of 18 Appeal.” Thus, the failure to raise the issues in the CCA rendered 19 their inclusion in the petition for review insufficient to give the 20 state court a fair opportunity to consider the claims. Further, 21 because the CSC summarily denied the petition for review, there is 22 no indication that despite the procedural deficiency of the 23 presentation, the state court determined to grant, or actually 24 granted, review of the new claims. The record thus warrants a 25 conclusion that the additional claims were not fairly presented to 26 the state court. 27 With respect to Petitioner’s claim concerning the denial of the 28 Romero motion, Petitioner challenged the trial court’s ruling on 10 1 appeal. However, the sole legal basis of the Romero claim was error 2 under state law. Petitioner argued that the state court’s 3 consideration and weighing of the circumstances constituted an abuse 4 of discretion under state law. Petitioner did not refer to either 5 the Apprendi decision or any of the federal constitutional 6 provisions involved in the Apprendi decision. The legal theories of 7 abuse of discretion under state law and denial of one’s 8 constitutional trial rights are vastly different. Cf. Anderson v. 9 Harless, 459 U.S. 4, 6-8 (1982) (arguing on direct appeal that an 10 instruction was erroneous under state law did not fairly present a 11 claim of a violation of due process based on the burden of proof and 12 application of mandatory presumptions); Picard v. Connor, 404 U.S. 13 at 277-78 (noting the crucial distinction between a claim of 14 improper indictment in violation of the Fifth and Fourteenth 15 Amendment right to indictment by a grand jury and a claim of a 16 discriminatory indictment in violation of the Fourteenth Amendment’s 17 Equal Protection Clause). 18 The Court concludes that Petitioner did not fairly present any 19 federal claim concerning the sentencing court’s denial of the motion 20 to strike prior convictions. 21 22 C. State Law Claim Respondent argues separately that Petitioner’s Apprendi claim 23 concerning the denial of the Romero motion was not fairly presented 24 because to the extent that any Romero claim was before the state 25 courts, it was solely a state law claim. 26 The Court has previously dismissed petitioner’s state law 27 claims. As noted above, federal habeas relief is available to state 28 prisoners only to correct violations of the United States 11 1 Constitution, federal laws, or treaties of the United States. 2 U.S.C. ' 2254(a). 28 Federal habeas relief is not available to retry a 3 state issue that does not rise to the level of a federal 4 constitutional violation. Wilson v. Corcoran, 562 U.S. C, 131 5 S.Ct. 13, 16 (2010); Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). 6 Alleged errors in the application of state law are not cognizable in 7 federal habeas corpus. Souch v. Schaivo, 289 F.3d 616, 623 (9th 8 Cir. 2002). The Court accepts a state court's interpretation of 9 state law. Langford v. Day, 110 F.3d 1180, 1389 (9th Cir. 1996). 10 In a habeas corpus proceeding, this Court is bound by the California 11 Supreme Court=s interpretation of California law unless the 12 interpretation is deemed untenable or a veiled attempt to avoid 13 review of federal questions. Murtishaw v. Woodford, 255 F.3d 926, 14 964 (9th Cir. 2001). 15 Here, there is no indication that the state court’s 16 interpretation of state law was associated with an attempt to avoid 17 review of federal questions. Thus, this Court is bound by the state 18 court’s interpretation and application of state law. To the extent 19 that any state law claim remains in the petition, it should be 20 dismissed because an error of state law would not entitle Petitioner 21 to relief in this proceeding. Brown v. Mayle, 283 F.3d 1019, 1039- 22 40 (9th Cir. 2002) (vacated on other grounds by Mayle v. Brown, 538 23 U.S. 901 (2003)). 24 Petitioner has not justified her failure to exhaust state court 25 remedies as to her claims. Review of the materials submitted in 26 Petitioner’s opposition do not support Petitioner’s argument that 27 she invoked Apprendi before the trial or intermediate state 28 appellate courts. 12 In sum, the Court concludes that Petitioner failed to meet her 1 2 burden to establish exhaustion of state court remedies of any 3 cognizable claim that is properly before the Court. Accordingly, it 4 4 will be recommended that the petition be dismissed without prejudice 5 for failure to exhaust state court remedies. 6 IV. Certificate of Appealability 7 Unless a circuit justice or judge issues a certificate of 8 appealability, an appeal may not be taken to the Court of Appeals 9 from the final order in a habeas proceeding in which the detention 10 complained of arises out of process issued by a state court. 28 11 U.S.C. ' 2253(c)(1)(A); Miller-El v. Cockrell, 537 U.S. 322, 336 12 (2003). A district court must issue or deny a certificate of 13 appealability when it enters a final order adverse to the applicant. 14 Rule 11(a) of the Rules Governing Section 2254 Cases. 15 16 17 4 A dismissal for failure to exhaust is not a dismissal on the merits, and 18 Petitioner will not be barred by the prohibition against filing second habeas petitions set forth in 28 U.S.C. § 2244(b) from returning to federal court after See, In re Turner, 101 F.3d 1323 (9th Cir. 1996). However, the Supreme Court has held as follows: 19 Petitioner exhausts available state remedies. 20 21 22 23 24 25 26 [I]n the habeas corpus context is would be appropriate for an order dismissing a mixed petition to instruct an applicant that upon his return to federal court he is to bring only exhausted claims. See Fed. Rules Civ. Proc. 41(a) and (b). Once the petitioner is made aware of the exhaustion requirement, no reason exists for him not to exhaust all potential claims before returning to federal court. The failure to comply with an order of the court is grounds for dismissal with prejudice. Fed. Rules Civ. Proc. 41(b). Slack v. McDaniel, 529 U.S. 473, 489 (2000). Therefore, Petitioner is forewarned that in the event she returns to federal 27 court and files a mixed petition of both exhausted and unexhausted claims, the 28 petition may be dismissed with prejudice. 13 1 A certificate of appealability may issue only if the applicant 2 makes a substantial showing of the denial of a constitutional right. 3 ' 2253(c)(2). A petitioner must show that reasonable jurists could 4 debate whether the petition should have been resolved in a different 5 manner or that the issues presented were adequate to deserve 6 encouragement to proceed further. Miller-El v. Cockrell, 537 U.S. 7 at 336 (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). A 8 certificate should issue if the Petitioner shows that jurists of 9 reason would find it debatable whether: (1) the petition states a 10 valid claim of the denial of a constitutional right, and (2) the 11 district court was correct in any procedural ruling. Slack v. 12 McDaniel, 529 U.S. 473, 483-84 (2000). 13 In determining this issue, a court conducts an overview of the 14 claims in the habeas petition, generally assesses their merits, and 15 determines whether the resolution was debatable among jurists of 16 reason or wrong. Id. An applicant must show more than an absence 17 of frivolity or the existence of mere good faith; however, the 18 applicant need not show that the appeal will succeed. Miller-El v. 19 Cockrell, 537 U.S. at 338. 20 Here, it does not appear that reasonable jurists could debate 21 whether the petition should have been resolved in a different 22 manner. Petitioner has not made a substantial showing of the denial 23 of a constitutional right. 24 Accordingly, it will be recommended that the Court decline to 25 issue a certificate of appealability. 26 V. Recommendations 27 In accordance with the foregoing analysis, it is RECOMMENDED 28 that: 14 1) Respondent’s motion to dismiss the petition for failure to 1 2 exhaust state court remedies be GRANTED; 2) The petition for writ of habeas corpus be DISMISSED without 3 4 prejudice for Petitioner’s failure to exhaust state court remedies; 3) The Court DECLINE to issue a certificate of appealability; 5 6 and 7 4) The Clerk be DIRECTED to close the case. 8 9 10 Filing Objections to the Findings and Recommendations: These findings and recommendations are submitted to the United 11 States District Court Judge assigned to the case, pursuant to the 12 provisions of 28 U.S.C. ' 636 (b)(1)(B) and Rule 304 of the Local 13 Rules of Practice for the United States District Court, Eastern 14 District of California. Within thirty (30) days after being served 15 with a copy, any party may file written objections with the Court 16 and serve a copy on all parties. Such a document should be 17 captioned AObjections to Magistrate Judge=s Findings and 18 Recommendations.@ Replies to the objections shall be served and 19 filed within fourteen (14) days (plus three (3) days if served by 20 mail) after service of the objections. The Court will then review 21 the Magistrate Judge=s ruling pursuant to 28 U.S.C. ' 636 (b)(1)(C). 22 The parties are advised that failure to file objections within the 23 specified time may waive the right to appeal the District Court=s 24 order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 25 26 IT IS SO ORDERED. 27 28 Dated: July 7, 2014 /s/ Sheila K. Oberto UNITED STATES MAGISTRATE JUDGE 15
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
