(HC) Coker v. Runnels et al, No. 2:2005cv01814 - Document 4 (E.D. Cal. 2005)

Court Description: FINDINGS and RECOMMENDATIONS signed by Judge Craig M. Kellison recommending that petitioner's application for a writ of habeas corpus be dismissed for failure to exhaust state remedies. 1 Petition for Writ of Habeas Corpus filed by Chester Allen Coker referred to Judge Morrison C. England, Jr. (Waggoner, D)

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(HC) Coker v. Runnels et al Doc. 4 Case 2:05-cv-01814-MCE-CMK Document 4 Filed 09/15/2005 Page 1 of 2 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 Chester Allen Coker Petitioner, 11 12 13 No. CIV S-05-1814 MCE CMK vs. David L. Runnels, Warden, et al., Respondents. 14 FINDINGS & RECOMMENDATIONS / 15 Petitioner, a state prisoner proceeding pro se, has filed an application for a writ of 16 17 habeas corpus pursuant to 28 U.S.C. § 2254, together with a request to proceed in forma 18 pauperis. 19 20 21 Examination of the affidavit reveals petitioner is unable to afford the costs of this action. Accordingly, leave to proceed in forma pauperis is granted. 28 U.S.C. § 1915(a). The exhaustion of available state remedies is a prerequisite to a federal court's 22 consideration of claims sought to be presented in habeas corpus proceedings. See Rose v. 23 Lundy, 455 U.S. 509 (1982); 28 U.S.C. § 2254(b). A petitioner can satisfy the exhaustion 24 requirement by providing the highest state court with a full and fair opportunity to consider all 25 claims before presenting them to the federal court. Picard v. Connor, 404 U.S. 270, 276 (1971), 26 Middleton v. Cupp, 768 F.2d 1083, 1086 (9th Cir.), cert. denied, 478 U.S. 1021 (1986). 1 Dockets.Justia.com Case 2:05-cv-01814-MCE-CMK Document 4 Filed 09/15/2005 Page 2 of 2 1 After reviewing the petition for habeas corpus, the court finds that petitioner has 2 failed to exhaust state court remedies. In his petition, petitioner indicates that, other than direct 3 appeal, he has not filed any applications with respect to this judgment. (Pet. at 3.) Therefore, his 4 claims have not been presented to the California Supreme Court. Further, there is no allegation 5 that state court remedies are no longer available to him. Accordingly, IT IS HEREBY 6 RECOMMENDED that petitioner's application for a writ of habeas corpus be dismissed for 7 failure to exhaust state remedies. 8 9 These findings and recommendations will be submitted to the United States District Judge assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 10 twenty days after being served with these findings and recommendations, any party may file 11 written objections with the court and serve a copy on all parties. Such a document should be 12 captioned “Objections to Findings and Recommendations.” Any reply to the objections shall be 13 served and filed within ten days after service of the objections. The parties are advised that 14 failure to file objections within the specified time may waive the right to appeal the District 15 Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 16 17 DATED: September 13, 2005. 18 19 20 ______________________________________ CRAIG M. KELLISON UNITED STATES MAGISTRATE JUDGE 21 22 23 24 25 26 2

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