(HC) Jones v. Martel, No. 2:2008cv01933 - Document 18 (E.D. Cal. 2009)
Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kimberly J. Mueller on 12/07/09 recommending that respondent's motion to dismiss 12 be denied. Respondent be granted no more than 30 days in which to file his answer. Motion to Dismiss 12 referred to Judge John A. Mendez. Objections due within 20 days. (Plummer, M)
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(HC) Jones v. Martel Doc. 18 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 MICHAEL JONES, 11 Petitioner, 12 13 No. CIV-S-08-1933 JAM KJM P vs. WARDEN MARTEL, 14 Respondent. 15 FINDINGS AND RECOMMENDATIONS / 16 Petitioner is a California prisoner proceeding pro se with a petition for writ of 17 habeas corpus under 28 U.S.C. § 2254. Petitioner challenges several convictions, including rape, 18 entered in Yolo County in 2003. Respondent argues that this action should be dismissed for 19 failure to exhaust state court remedies. Petitioner has opposed the motion. Respondent has not 20 filed a reply. 21 The exhaustion of state court remedies is a prerequisite to the granting of a 22 petition for writ of habeas corpus. 28 U.S.C. § 2254(b)(1). A petitioner satisfies the exhaustion 23 requirement by providing the highest state court with a full and fair opportunity to consider all 24 claims before presenting them to the federal court. Picard v. Connor, 404 U.S. 270, 276 (1971); 25 Middleton v. Cupp, 768 F.2d 1083, 1086 (9th Cir.), cert. denied, 478 U.S. 1021 (1986). 26 ///// 1 Dockets.Justia.com 1 Respondent asserts petitioner has not exhausted state court remedies with respect 2 to claim 1, that the prosecution failed to disclose evidence favorable to the defense; claim 5, 3 prosecutorial misconduct; and claim 6, ineffective assistance of counsel. However, a review of 4 the court’s file reveals that claims 1, 5 and 6 were raised as claims 4, 5 and 6, respectively, in a 5 petition for writ of habeas corpus presented to the California Supreme Court. Pet. at 4, 8-11, 21- 6 24, 67-69, 105-115;1 cf. Resp’t’s Lodged Doc. #5 at consecutive pages 131-189. The petition 7 was denied by the California Supreme Court on February 27, 2008. Id. at consecutive page 1. 8 9 For these reasons, respondent’s motion to dismiss should be denied and respondent should be ordered to file his answer. 10 Accordingly, IT IS HEREBY RECOMMENDED that: 11 1. Respondent’s motion to dismiss (#12) be denied. 12 2. Respondent be granted no more the thirty days in which to file his answer. 13 These findings and recommendations are submitted to the United States District 14 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty 15 days after being served with these findings and recommendations, any party may file written 16 objections with the court and serve a copy on all parties. Such a document should be captioned 17 “Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections 18 shall be served and filed within ten days after service of the objections. The parties are advised 19 that failure to file objections within the specified time may waive the right to appeal the District 20 Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 21 DATED: December 7, 2009. 22 23 24 1 jone1933.157 25 26 1 Page references to the petition are those assigned by the court’s CM/ECF system. 2
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