(HC) Hecker v. Knowles, No. 2:2008cv02728 - Document 7 (E.D. Cal. 2009)

Court Description: ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Dale A. Drozd on 10/07/09 ORDERING petitioner is granted leave to proceed in forma pauperis. The clerk of the court is directed to serve a copy of these findings and recommendations t ogether with a copy of the petition filed in the instant case on the Attorney General for the State of California. The clerk of the court is directed to randomly assign a District Judge to this action. U.S. District Judge Lawrence K. Karlton random ly assigned to this action. Also, RECOMMENDING that petitioner's application for a writ of habeas corpus be dismissed without prejudice due to petitioner's failure to exhaust his claims through presentation to the highest state court. Referred to Judge Lawrence K. Karlton. Objections due within 20 days. (cc: Michael Farrell, Attorney General)(Plummer, M)

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(HC) Hecker v. Knowles Doc. 7 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 ROBERT ALAN HECKER, 11 12 13 Petitioner, No. CIV S-08-2728 DAD P vs. MIKE KNOWLES, 14 ORDER AND Respondent. 15 FINDINGS AND RECOMMENDATIONS / 16 Petitioner, a state prisoner proceeding pro se, has filed an application for a writ of 17 habeas corpus pursuant to 28 U.S.C. § 2254 together with a request to proceed in forma pauperis 18 pursuant to 28 U.S.C. § 1915. Petitioner has submitted a declaration that makes the showing 19 required by § 1915(a). Accordingly, the request to proceed in forma pauperis will be granted. 20 See 28 U.S.C. § 1915(a). 21 The exhaustion of state court remedies is a prerequisite to the granting of a 22 petition for writ of habeas corpus. See 28 U.S.C. § 2254(b)(1). If exhaustion is to be waived, it 23 must be waived explicitly by the respondent’s counsel. See 28 U.S.C. § 2254(b)(3).1 A waiver 24 of exhaustion, thus, may not be implied or inferred. 25 1 26 A petition may be denied on the merits without exhaustion of state court remedies. See 28 U.S.C. § 2254(b)(2). 1 Dockets.Justia.com 1 A petitioner satisfies the exhaustion requirement by fairly presenting to the 2 highest state court all federal claims before presenting them to the federal court. See Duncan v. 3 Henry, 513 U.S. 364, 365 (1995) (per curiam); Picard v. Connor, 404 U.S. 270, 276 (1971); 4 Crotts v. Smith, 73 F.3d 861, 865 (9th Cir. 1996); Middleton v. Cupp, 768 F.2d 1083, 1086 (9th 5 Cir. 1986). 6 In his habeas petition, petitioner challenges the loss of five days of good time 7 credits due to a prison disciplinary action in 1997 charging petitioner with engaging in mutual 8 combat. After reviewing the habeas petition, the court finds that petitioner has failed to exhaust 9 state court remedies. Petitioner has not alleged nor has he shown that his challenge concerning 10 the loss of five days of good time credits has been presented to the California Supreme Court. 11 Accordingly, the petition should be dismissed without prejudice. 12 In addition to his failure to exhaust state court remedies, it appears that the 13 pending habeas petition may be a successive petition pursuant to 28 U.S.C. § 2244(b)(1) or an 14 untimely-filed petition. In this regard, petitioner indicates that he filed a habeas petition in 2008 15 challenging the loss of good time credits, including the five days of lost credits challenged here. 16 See Hecker v. Hubbard, No. CIV S-07-1511 FCD GGH P. That earlier filed habeas action was 17 dismissed as time barred in response to the respondent’s motion to dismiss on the ground that the 18 action was barred by the statute of limitations. Accordingly, it appears that the instant petition 19 would be barred by the statute of limitations as well. 20 Accordingly, IT IS HEREBY ORDERED that: 21 1. Petitioner is granted leave to proceed in forma pauperis; 22 2. The Clerk of the Court is directed to serve a copy of these findings and 23 recommendations together with a copy of the petition filed in the instant case on the Attorney 24 General of the State of California; 25 26 3. The Clerk of the Court is directed to randomly assign this action to a District Judge; and 2 1 IT IS HEREBY RECOMMENDED that petitioner’s application for a writ of 2 habeas corpus be dismissed without prejudice due to petitioner’s failure to exhaust his claims 3 through presentation to the highest state court. 4 These findings and recommendations will be submitted to the United States 5 District Judge assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 6 twenty days after being served with these findings and recommendations, petitioner may file 7 written objections with the court. The document should be captioned “Objections to Findings 8 and Recommendations.” Petitioner is advised that failure to file objections within the specified 9 time may waive the right to appeal the District Court’s order. See Martinez v. Ylst, 951 F.2d 10 1153 (9th Cir. 1991). 11 DATED: October 7, 2009. 12 13 14 15 DAD:4 heck2728.103 16 17 18 19 20 21 22 23 24 25 26 3

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