(HC) Barnes v. Board of Parole Hearing, et al, No. 2:2009cv00736 - Document 18 (E.D. Cal. 2010)
Court Description: ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge John F. Moulds on 3/4/10 ORDERING that 17 MOTION for Writ of Mandamus is construed as an opposition to respondent's 2/2/10 motion to dismiss; RECOMMENDING that 15 MOTION to DISMISS be granted; and this action be dismissed for failure to exhaust state remedies. Referred to Judge Lawrence K. Karlton; Objections to F&R due within 14 days.(Dillon, M)
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(HC) Barnes v. Board of Parole Hearing, et al Doc. 18 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 BERNARD BARNES, 11 12 Petitioner, No. 2:09-cv-0736-LKK-JFM (HC) vs. 13 KATHLEEN DICKINSON, 14 Respondent. 15 ORDER AND FINDINGS & RECOMMENDATIONS / 16 Petitioner is a state prisoner proceeding pro se and in forma pauperis with an 17 application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. This action is proceeding 18 on petitioner’s amended petition filed August 20, 2009, challenging a May 12, 2009 decision of 19 the California Board of Parole Hearings to deny him a parole date. This matter is before the 20 court on respondent’s motion to dismiss the action for failure to exhaust state court remedies. 21 Petitioner has opposed the motion.1 22 23 The exhaustion of state court remedies is a prerequisite to the granting of a petition for writ of habeas corpus. 28 U.S.C. § 2254(b)(1). If exhaustion is to be waived, it must 24 25 26 1 On February 18, 2010, petitioner filed a document styled “A Motion for Writ of Mandamus to Show Cause for Contempt of Court.” The court construes this document as petitioner’s opposition to respondent’s motion to dismiss. 1 Dockets.Justia.com 1 be waived explicitly by respondent’s counsel. 28 U.S.C. § 2254(b)(3).2 A waiver of exhaustion, 2 thus, may not be implied or inferred. A petitioner satisfies the exhaustion requirement by 3 providing the highest state court with a full and fair opportunity to consider all claims before 4 presenting them to the federal court. Picard v. Connor, 404 U.S. 270, 276 (1971); Middleton v. 5 Cupp, 768 F.2d 1083, 1086 (9th Cir.), cert. denied, 478 U.S. 1021 (1986). 6 After reviewing the petition for habeas corpus, the court finds that petitioner has 7 failed to exhaust state court remedies. The claims have not been presented to the California 8 Supreme Court. Further, there is no allegation that state court remedies are no longer available to 9 petitioner. Accordingly, respondent’s motion to dismiss should be granted and the petition 10 should be dismissed without prejudice.3 11 Good cause appearing, IT IS HEREBY ORDERED that petitioner’s February 18, 12 2010 motion for writ of mandamus is construed as an opposition to respondent’s February 2, 13 2010 motion to dismiss; and 14 IT IS HEREBY RECOMMENDED that: 15 1. Respondent’s February 2, 2010 motion to dismiss be granted; and 16 2. This action be dismissed without prejudice for failure to exhaust state 17 remedies. 18 These findings and recommendations will be submitted to the United States 19 District Judge assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 20 fourteen days after being served with these findings and recommendations, any party may file 21 22 23 2 A petition may be denied on the merits without exhaustion of state court remedies. 28 U.S.C. § 2254(b)(2). 3 24 25 26 Petitioner is cautioned that the habeas corpus statute imposes a one year statute of limitations for filing non-capital habeas corpus petitions in federal court. In most cases, the one year period will start to run on the date on which the state court judgment became final by the conclusion of direct review or the expiration of time for seeking direct review, although the statute of limitations is tolled while a properly filed application for state post-conviction or other collateral review is pending. 28 U.S.C. § 2244(d). 2 1 written objections with the court. Such a document should be captioned “Objections to Findings 2 and Recommendations.” Any response to the objections shall be filed and served within fourteen 3 days after service of the objections. The parties are advised that failure to file objections within 4 the specified time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 5 F.2d 1153 (9th Cir. 1991). 6 DATED: March 4, 2010. 7 8 9 10 11 12 barn0736.mtd 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 3
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