(HC) Beltran v. On Habeas Corpus, No. 1:2015cv01858 - Document 6 (E.D. Cal. 2015)

Court Description: FINDINGS and RECOMMENDATIONS recommending that the Court Dismiss the Petition Without Prejudice re 1 Petition for Writ of Habeas Corpus signed by Magistrate Judge Sheila K. Oberto on 12/30/2015. Referred to Judge Drozd. Objections to F&R due within thirty (30) days. (Jessen, A)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 JAIME BELTRAN, 12 Petitioner, 13 14 v. ON HABEAS CORPUS, 15 Respondent. No. 1:15-cv-01858-DAD-SKO HC FINDINGS AND RECOMMENDATIONS RECOMMENDING THAT THE COURT DISMISS THE PETITION FOR WRIT OF HABEAS CORPUS FOR FAILURE TO EXHAUST STATE REMEDIES (Doc. 1) 16 17 18 19 Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Because Petitioner has not exhausted his state remedies, the undersigned recommends that the Court dismiss the petition. 20 21 22 I. Preliminary Screening Rule 4 of the Rules Governing § 2254 Cases requires the Court to conduct a preliminary 23 review of each petition for writ of habeas corpus. The Court must dismiss a petition "[i]f it 24 plainly appears from the petition . . . that the petitioner is not entitled to relief." Rule 4 of the 25 Rules Governing 2254 Cases; see also Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Cir. 1990). 26 A petition for habeas corpus should not be dismissed without leave to amend unless it appears 27 that no tenable claim for relief can be pleaded were such leave to be granted. Jarvis v. Nelson, 28 1 1 440 F.2d 13, 14 (9th Cir. 1971). 2 II. 3 Procedural Background In January 2013, a jury in the Fresno County Superior Court convicted Petitioner of first 4 degree murder. On February 14, 2013, the state court sentenced Petitioner of a term of fifty years 5 6 to life. On December 1, 2015, the California Court of Appeal for the Fifth District rejected 7 Petitioner’s direct appeal, finding no arguable issues. Petitioner did not appeal to the California 8 Supreme Court. On December 11, 2015, Petitioner filed a petition for writ of habeas corpus in 9 this Court. 10 11 III. Exhaustion of State Remedies Required A petitioner who is in state custody and wishes to collaterally challenge his conviction by 12 13 14 a petition for writ of habeas corpus must exhaust state judicial remedies. 28 U.S.C. § 2254(b)(1). The exhaustion doctrine is based on comity to the state court and gives the state court the initial 15 opportunity to correct the state's alleged constitutional deprivations. Coleman v. Thompson, 501 16 U.S. 722, 731 (1991); Rose v. Lundy, 455 U.S. 509, 518 (1982); Buffalo v. Sunn, 854 F.2d 1158, 17 1163 (9th Cir. 1988). 18 19 A petitioner can satisfy the exhaustion requirement by providing the highest state court with a full and fair opportunity to consider each claim before presenting it to the federal court. 20 21 Duncan v. Henry, 513 U.S. 364, 365 (1995); Picard v. Connor, 404 U.S. 270, 276 (1971); 22 Johnson v. Zenon, 88 F.3d 828, 829 (9th Cir. 1996). A federal court will find that the highest state 23 court was given a full and fair opportunity to hear a claim if the petitioner has presented the 24 highest state court with the claim's factual and legal basis. Duncan, 513 U.S. at 365; Kenney v. 25 Tamayo-Reyes, 504 U.S. 1, 8 (1992). The petitioner must also have specifically informed the 26 27 state court that he was raising a federal constitutional claim. Duncan, 513 U.S. at 365-66; Lyons v. Crawford, 232 F.3d 666, 669 (9th Cir. 2000), amended, 247 F.3d 904 (2001); Hiivala v. Wood, 28 2 1 2 3 4 195 F.3d 1098, 1106 (9th Cir. 1999); Keating v. Hood, 133 F.3d 1240, 1241 (9th Cir. 1998). When none of a petitioner’s claims has been presented to the highest state court as required by the exhaustion doctrine, the Court must dismiss the petition. Raspberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir. 2006); Jiminez v. Rice 276 F.3d 478, 481 (9th Cir. 2001). The 5 6 authority of a court to hold a mixed petition in abeyance pending exhaustion of the unexhausted 7 claims has not been extended to petitions that contain no exhausted claims. Raspberry, 448 F.3d 8 at 1154. 9 In his petition, Petitioner discloses that he has not yet appealed the recent decision of the 10 California Court of Appeals to the California Supreme Court. As a result, he has not exhausted 11 12 13 14 state remedies as to the claims set forth in his petition. Although non-exhaustion of state court remedies has been viewed as an affirmative defense, it is the petitioner’s burden to prove that state judicial remedies were properly exhausted. 28 U.S.C. § 2254(b)(1)(A); Darr v. Burford, 15 339 U.S. 200, 218-19 (1950), overruled in part on other grounds in Fay v. Noia, 372 U.S. 391 16 (1963); Cartwright v. Cupp, 650 F.2d 1103, 1104 (9th Cir. 1981). If available state court remedies 17 have not been exhausted as to all claims, a district court must dismiss a petition. Rose v. Lundy, 18 455 U.S. 509, 515-16 (1982). 19 IV. Conclusion and Recommendation 20 21 22 23 Because Petitioner has not exhausted state remedies, the undersigned recommends that the Court dismiss the petition without prejudice. These Findings and Recommendations will be submitted to the United States District 24 Judge assigned to the case, pursuant to the provisions of 28 U.S.C ' 636(b)(1). Within thirty 25 (30) days after being served with these Findings and Recommendations, Petitioner may file 26 written objections with the Court. The document should be captioned AObjections to Magistrate 27 Judge=s Findings and Recommendations.@ Petitioner is advised that failure to file objections 28 3 1 within the specified time may constitute waiver of the right to appeal the District Court's order. 2 Wilkerson v. Wheeler, 772 F.3d 834, 839 ((9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 3 1391, 1394 (9th Cir. 1991)). 4 5 6 7 IT IS SO ORDERED. Dated: December 30, 2015 /s/ Sheila K. Oberto UNITED STATES MAGISTRATE JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4

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