(HC) Hairston v. Zulfa et al, No. 1:2018cv01194 - Document 9 (E.D. Cal. 2018)

Court Description: FINDINGS and RECOMMENDATIONS recommending that the petition for writ of habeas corpus be Dismissed without prejudice for failure to exhaust state judicial remedies ;referred to Judge O'Neill, signed by Magistrate Judge Stanley A. Boone on 11/7/2018. Objections to F&R due 30-Day Deadline(Martin-Gill, S)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 ROBEY HAIRSTON, 10 Case No. 1:18-cv-01194-LJO-SAB-HC Petitioner, 11 FINDINGS AND RECOMMENDATION TO DISMISS PETITION FOR WRIT OF HABEAS CORPUS WITHOUT PREJUDICE v. 12 DAVID R. ZULFA, et al., 13 Respondents. 14 15 Petitioner is proceeding pro se with a petition for writ of habeas corpus pursuant to 28 16 17 U.S.C. § 2254. 18 I. 19 BACKGROUND Petitioner is currently incarcerated at North Kern State Prison serving a four-year 20 1 21 sentence for assault and battery. (ECF No. 1 at 1). On August 27, 2018, Petitioner filed the 22 instant petition for writ of habeas corpus challenging his conviction. (ECF No. 1). On September 23 6, 2018, the Court ordered Petitioner to show cause why the petition should not be dismissed 24 without prejudice for failure to exhaust state judicial remedies. (ECF No. 6). The order to show 25 cause was served on Petitioner and contained notice that a response should be filed within thirty 26 days of the date of service of the order. Over thirty days have passed and Petitioner has not 27 responded to the Court’s order to show cause. 28 1 Page numbers refer to the ECF page numbers stamped at the top of the page. 1 1 II. 2 DISCUSSION 3 Rule 4 of the Rules Governing Section 2254 Cases requires preliminary review of a 4 habeas petition and allows a district court to dismiss a petition before the respondent is ordered 5 to file a response, if it “plainly appears from the petition and any attached exhibits that the 6 petitioner is not entitled to relief in the district court.” 7 A petitioner in state custody who is proceeding with a petition for writ of habeas corpus 8 must exhaust state judicial remedies. 28 U.S.C. § 2254(b)(1). The exhaustion doctrine is based 9 on comity to the state court and gives the state court the initial opportunity to correct the state’s 10 alleged constitutional deprivations. Coleman v. Thompson, 501 U.S. 722, 731 (1991); Rose v. 11 Lundy, 455 U.S. 509, 518 (1982). A petitioner can satisfy the exhaustion requirement by 12 providing the highest state court with a full and fair opportunity to consider each claim before 13 presenting it to the federal court. O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999); Duncan v. 14 Henry, 513 U.S. 364, 365 (1995); Picard v. Connor, 404 U.S. 270, 276 (1971). 15 The petition states that Petitioner appealed the judgment of conviction, but it is unclear 16 whether Petitioner sought relief in the California Supreme Court. (ECF No. 1 at 1–3, 5). It is 17 possible that Petitioner presented all of his claims to the California Supreme Court and failed to 18 indicate this to the Court. However, as Petitioner has not responded to the order to show cause, it 19 appears that Petitioner failed to exhaust the claims raised in the instant petition. If Petitioner has 20 not sought relief in the California Supreme Court, the Court cannot proceed to the merits of those 21 claims. 28 U.S.C. § 2254(b)(1). 22 III. 23 RECOMMENDATION 24 Accordingly, the undersigned HEREBY RECOMMENDS that the petition for writ of 25 habeas corpus be DISMISSED WITHOUT PREJUDICE for failure to exhaust state judicial 26 remedies. 27 This Findings and Recommendation is submitted to the United States District Court 28 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 2 1 of the Local Rules of Practice for the United States District Court, Eastern District of California. 2 Within THIRTY (30) days after service of the Findings and Recommendation, Petitioner may 3 file written objections with the Court and serve a copy on all parties. Such a document should be 4 captioned “Objections to Magistrate Judge’s Findings and Recommendation.” The assigned 5 District Judge will then review the Magistrate Judge’s ruling pursuant to 28 U.S.C. 6 § 636(b)(1)(C). Petitioner is advised that failure to file objections within the specified time may 7 result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) 8 (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 9 10 IT IS SO ORDERED. 11 Dated: November 7, 2018 UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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