(HC) Harris v. County of Kern, No. 1:2018cv00819 - Document 8 (E.D. Cal. 2018)

Court Description: FINDINGS and RECOMMENDATIONS recommending that the Petition for Writ of Habeas Corpus be Dismissed without prejudice for nonexhaustion and failure to prosecute re 1 Petition for Writ of Habeas Corpus filed by Devon Dante Harris, Jr.; referred to Judge Ishii, signed by Magistrate Judge Stanley A. Boone on 9/13/18. Objections to F&R due 14-Day Deadline (Martin-Gill, S)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 DEVIN HARRIS, Petitioner, 12 13 14 Case No. 1:18-cv-00819-AWI-SAB-HC FINDINGS AND RECOMMENDATION TO DISMISS WITHOUT PREJUDICE PETITION FOR WRIT OF HABEAS CORPUS v. COUNTY OF KERN, Respondent. 15 16 17 Petitioner is proceeding pro se with a petition for writ of habeas corpus pursuant to 28 18 U.S.C. § 2254. 19 I. 20 BACKGROUND 21 On June 15, 2018, Petitioner filed the instant petition for writ of habeas corpus 22 challenging his 2018 Kern County Superior Court conviction for attempt to manufacture a 23 weapon by a prisoner, in violation of California Penal Code section 4502(b). (ECF No. 1). On 24 June 18, 2018, the Court issued prisoner new case documents and served those documents on 25 Petitioner. (ECF No. 3). The Court also granted Petitioner’s motion to proceed in forma pauperis 26 and served the order on Petitioner. (ECF No. 4). On June 19, 2018, the Court ordered Petitioner 27 to show cause why the petition should not be dismissed for nonexhaustion. (ECF No. 5). That 28 same day, the order to show cause was served on Petitioner and contained notice that a response 1 1 should be filed within thirty days of the date of service of the order. On June 28, 2018, the order 2 to show cause was returned to the Court as “undeliverable” with a notation that Petitioner was 3 “not in custody.” On July 2, 2018, the prisoner new case documents and order granting in forma 4 pauperis status were returned to the Court as “undeliverable” with a notation that Petitioner was 5 “not in custody.” If mail directed to a pro se petitioner is returned by the U.S. Postal Service, and 6 if the petitioner fails to notify the Court within sixty-three days thereafter of a current address, 7 the Court may dismiss the action without prejudice for failure to prosecute. Local Rule 183(b). 8 II. 9 DISCUSSION Rule 4 of the Rules Governing Section 2254 Cases requires preliminary review of a 10 11 habeas petition and allows a district court to dismiss a petition before the respondent is ordered 12 to file a response, if it “plainly appears from the petition and any attached exhibits that the 13 petitioner is not entitled to relief in the district court.” 14 A. Exhaustion 15 A petitioner in state custody who is proceeding with a petition for writ of habeas corpus 16 must exhaust state judicial remedies. 28 U.S.C. § 2254(b)(1). The exhaustion doctrine is based 17 on comity to the state court and gives the state court the initial opportunity to correct the state’s 18 alleged constitutional deprivations. Coleman v. Thompson, 501 U.S. 722, 731 (1991); Rose v. 19 Lundy, 455 U.S. 509, 518 (1982). A petitioner can satisfy the exhaustion requirement by 20 providing the highest state court with a full and fair opportunity to consider each claim before 21 presenting it to the federal court. O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999); Duncan v. 22 Henry, 513 U.S. 364, 365 (1995); Picard v. Connor, 404 U.S. 270, 276 (1971). Here, the petition states that Petitioner did not file a direct appeal and did not file any 23 24 state habeas petitions. (ECF No. 1 at 2–3, 5–7, 9–10, 12).1 It is possible that Petitioner presented 25 all of his claims to the California Supreme Court and failed to indicate this to the Court, but as 26 Petitioner has not responded to the order to show cause, it appears that Petitioner failed to 27 28 1 Page numbers refer to the ECF page numbers stamped at the top of the page. 2 1 exhaust his claims in the instant petition. If Petitioner has not sought relief in the California 2 Supreme Court, the Court cannot proceed to the merits of those claims. 28 U.S.C. § 2254(b)(1). 3 B. Failure to Prosecute 4 Pursuant to Federal Rule of Civil Procedure 41(b), a district court may dismiss an action 5 for failure to prosecute, failure to comply with the Federal Rules of Civil Procedure, failure to 6 comply with the court’s local rules, or failure to comply with the court’s orders. See, e.g., 7 Chambers v. NASCO, Inc., 501 U.S. 32, 44 (1991) (recognizing federal court’s inherent power 8 to “act sua sponte to dismiss a suit for failure to prosecute”); Hells Canyon Preservation Council 9 v. U.S. Forest Serv., 403 F.3d 683, 689 (9th Cir. 2005) (recognizing that courts may dismiss an 10 action pursuant to Federal Rule of Civil Procedure 41(b) sua sponte for a plaintiff’s failure to 11 prosecute or comply with the rules of civil procedure or the court’s orders). 12 It is Petitioner’s responsibility to keep the court apprised of his current address at all 13 times. See Local Rule 183(b). Absent notice of a party’s change of address, service of documents 14 at the prior address of the party is fully effective. Local Rule 182(f). Furthermore, if mail 15 directed to a pro se petitioner is returned by the U.S. Postal Service, and if the petitioner fails to 16 notify the Court within sixty-three days thereafter of a current address, the Court may dismiss the 17 action without prejudice for failure to prosecute. Local Rule 183(b). Petitioner has not notified 18 the Court of his current address. It has been over sixty-three days since mail was returned by the 19 U.S. Postal Service as undeliverable and the notation that Petitioner is “not in custody.” 20 Therefore, the petition also should be dismissed for failure to prosecute. 21 III. 22 RECOMMENDATION 23 Accordingly, the undersigned HEREBY RECOMMENDS that the petition for writ of 24 habeas corpus be DISMISSED WITHOUT PREJUDICE for nonexhaustion and failure to 25 prosecute. 26 This Findings and Recommendation is submitted to the assigned United States District 27 Court Judge, pursuant to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of the Local 28 Rules of Practice for the United States District Court, Eastern District of California. Within 3 1 FOURTEEN (14) days after service of the Findings and Recommendation, Petitioner may file 2 written objections with the court and serve a copy on all parties. Such a document should be 3 captioned “Objections to Magistrate Judge’s Findings and Recommendation.” The assigned 4 United States District Court Judge will then review the Magistrate Judge’s ruling pursuant to 28 5 U.S.C. § 636(b)(1)(C). The parties are advised that failure to file objections within the specified 6 time may waive the right to appeal the District Court’s order. Wilkerson v. Wheeler, 772 F.3d 7 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 8 9 IT IS SO ORDERED. 10 Dated: September 13, 2018 UNITED STATES MAGISTRATE JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4

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