(HC) Uriarte v. Gonzales, No. 2:2010cv00147 - Document 4 (E.D. Cal. 2010)

Court Description: ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kimberly J. Mueller on 1/27/10 ORDERING that Clerk of the Court is directed to assign a district court judge to this case; and Clerk of the Court is directed to serve a copy of these f indings and recommendations together with a copy of the petition filed in the instant case on the Attorney General of the State of California; RECOMMENDING that petitioner's application for a writ ofhabeas corpus be dismissed for failure to exhaust state remedies. Referred to Judge Morrison C. England, Jr.; Objections to F&R due within 21 days. (cc Attorney General)(Dillon, M)

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(HC) Uriarte v. Gonzales Doc. 4 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 HECTOR ERNESTO URIARTE, Petitioner, 11 12 vs. 13 No. CIV S-10-0147 KJM P F. GONZALES, Respondent. 14 / 15 FINDINGS AND RECOMMENDATIONS Petitioner, a state prisoner proceeding pro se, has filed an application for a writ of 16 17 ORDER AND habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner has paid the filing fee. The exhaustion of state court remedies is a prerequisite to the granting of a 18 19 petition for writ of habeas corpus. 28 U.S.C. § 2254(b)(1). After reviewing petitioner’s petition 20 for habeas corpus, the court finds that petitioner has failed to exhaust state court remedies 21 because, based on his own report, his claims have not been presented to the California Supreme 22 Court. Further, there is no allegation that state court remedies are no longer available to 23 petitioner. Accordingly, the petition should be dismissed without prejudice.1 24 1 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 1 Dockets.Justia.com 1 Good cause appearing, IT IS HEREBY ORDERED that: 2 1. The Clerk of the Court is directed to assign a district court judge to this case; 3 and 2. The Clerk of the Court is directed to serve a copy of these findings and 4 5 recommendations together with a copy of the petition filed in the instant case on the Attorney 6 General of the State of California. IT IS HEREBY RECOMMENDED that petitioner's application for a writ of 7 8 habeas corpus be dismissed for failure to exhaust state remedies. These findings and recommendations will be submitted to the United States 9 10 District Judge assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 11 twenty-one days after being served with these findings and recommendations, petitioner may file 12 written objections with the court. The document should be captioned "Objections to Findings 13 and Recommendations." Petitioner is advised that failure to file objections within the specified 14 time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 15 (9th Cir. 1991). 16 DATED: January 27, 2010. 17 18 19 1/md uria0147.103(1.21.10) 20 21 22 23 24 25 26 is tolled while a properly filed application for state post-conviction or other collateral review is pending. 28 U.S.C. § 2244(d). 2

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