(HC) Cornejo v. Woodford et al, No. 2:2010cv00654 - Document 5 (E.D. Cal. 2010)
Court Description: ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Gregory G. Hollows on 04/02/10 ORDERING petitioner will not be required to submit a request for leave to proceed in forma pauperis or to pay the filing fee in this instance. The clerk of the court is directed to assign a District Judge to this matter. U.S. District Judge Morrison C. England Jr. randomly assigned to this action. Also, RECOMMENDING that petitioner's motion to stay the proceedings filed on 03/19/10 2 be den ied. Petitioner's application for a writ of habwas corpus be dismissed without prejudice for failure to exhaust state remedies. Petition for Writ of Habeas Corpus 1 and Motion to stay 2 referred to Judge Morrison C. England Jr. Objections due within 14 days. (Plummer, M)
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(HC) Cornejo v. Woodford et al Doc. 5 1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE EASTERN DISTRICT OF CALIFORNIA 8 EFRAIN CORNEJO, Petitioner, 9 10 11 12 13 14 No. CIV S-10-0654 GGH P vs. JEANNE WOODFORD, et al., Respondents. FINDINGS AND RECOMMENDATIONS / Petitioner, a state prisoner proceeding pro se, has filed an application for a writ of 15 habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner has not filed an in forma pauperis 16 affidavit or paid the required filing fee ($5.00). See 28 U.S.C. §§ 1914(a); 1915(a). However, 17 the court need not provide petitioner with the opportunity to submit the appropriate affidavit in 18 support of a request to proceed in forma pauperis or to submit the appropriate filing fee because 19 it appears that petitioner has failed to exhaust his state court remedies. 20 Petitioner challenges a Sacramento County Superior Court conviction/sentencing 21 for kidnapping for the purpose of robbery with the use of a firearm, but does not identify when 22 the judgment or sentencing took place. Petition, p. 1. Within his application, petitioner makes 23 two separate claims of ineffective assistance of counsel: 1) that his trial counsel failed to object 24 to petitioner’s being sentenced beyond the statutory maximum; and 2) that trial counsel failed to 25 properly investigate the case and to interview material witnesses. Id. at 4. Other than stating 26 these grounds, petitioner provides no supporting facts or argument. Petitioner appears to indicate 1 Dockets.Justia.com 1 that following his jury trial there was no direct appeal or any state court habeas application. 2 Petition, p. 3. The exhaustion of state court remedies is a prerequisite to the granting of a 3 4 petition for writ of habeas corpus. 28 U.S.C. § 2254(b)(1). If exhaustion is to be waived, it must 5 be waived explicitly by respondent’s counsel. 28 U.S.C. § 2254(b)(3).1 A waiver of exhaustion, 6 thus, may not be implied or inferred. A petitioner satisfies the exhaustion requirement by 7 providing the highest state court with a full and fair opportunity to consider all claims before 8 presenting them to the federal court. Picard v. Connor, 404 U.S. 270, 276 (1971); Middleton v. 9 Cupp, 768 F.2d 1083, 1086 (9th Cir.), cert. denied, 478 U.S. 1021 (1986). On the face of it, after reviewing the petition for habeas corpus, the court finds 10 11 that petitioner has failed to exhaust state court remedies. The claims have not been presented to 12 the California Supreme Court. Further, there is no allegation that state court remedies are no 13 longer available to petitioner. Petitioner has brought a motion to be “granted leave to exhaust state remedies.” 14 15 Petitioner is informed that he does not need permission from this court to exhaust state remedies. 16 To the extent that petitioner is also seeking a stay of this action while he does exhaust state 17 remedies, that request must be denied. In Rhines v. Weber, 544 U.S. 269, 125 S.Ct. 1528, 161 L.Ed.2d 440 (2005), the 18 19 Supreme Court held that a district court has discretion to stay a mixed petition to allow a 20 petitioner to present his unexhausted claims to the state court in the first instance and then to 21 return to federal court for review of his perfected petition. Nevertheless, stay and abeyance is available only in limited circumstances, 22 23 because the procedure frustrates the AEDPA's objective of encouraging finality by allowing a 24 petitioner to delay the resolution of federal proceedings and undermines AEDPA's goal of 25 1 26 A petition may be denied on the merits without exhaustion of state court remedies. 28 U.S.C. § 2254(b)(2). 2 1 streamlining federal habeas proceedings by decreasing a petitioner's incentive to exhaust all his 2 claims in state court prior to filing his federal petition. Id. at 1535. The Supreme Court held that 3 a stay and abeyance is “only appropriate when the district court determines there was good cause 4 for the petitioner's failure to exhaust his claims first in state court.” Id. 5 Unlike the petitioner in Rhines, the petitioner here has presented a completely 6 unexhausted petition, rather than a mixed petition. Thus, the petition before this court cannot 7 constitute a “protective” petition as discussed in Pace v. DiGuglielmo, 544 U.S. 408, 125 S.Ct. 8 1807, 161 L.Ed.2d 669 (2005) (citing Rhines, 544 U.S. at 278.) As discussed in Pace, the 9 protective stays referred to in Rhines involved a “mixed” petition, meaning that the petition 10 included both exhausted and unexhausted claims. The filing of the federal petition protects the 11 petitioner's ability to, ultimately, timely seek relief on the exhausted claims and the claims yet to 12 be exhausted in the state system. The Court in Pace discussed the merits of granting a stay to 13 allow petitioner to return to state court to exhaust those claims that remained unexhausted rather 14 than denying without prejudice a petition that included exhausted claims. Rhines v. Weber, 544 15 U.S. 269, 278, 125 S.Ct. 1528, 161 L.Ed.2d 440; Pace v. DiGuglielmo, 544 U.S. at 416. The 16 basis of that Court's ruling was premised on the fact that the petition was “mixed,” not 17 completely unexhausted. See also Rasperry v. Garcia, 448 F.3d 1150, 1154 (9th Cir. 2006) 18 (dismissal of a completely unexhausted petition is mandatory). Here, the court is not presented with a “mixed” petition. Petitioner has not 19 20 exhausted any claims in the petition. Accordingly, the stay and abeyance procedure is 21 unavailable and the petition should be dismissed without prejudice.2 Again, these Findings deal 22 with a requirement to dismiss completely unexhausted petitions, and an implicit request to stay 23 2 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). 3 1 the federal action pending exhaustion; nothing herein is meant to deter petitioner from 2 exhausting state remedies as soon as he can and then filing a federal petition. 3 IT IS ORDERED that: 4 1. Petitioner will not be required to submit a request for leave to proceed in forma 5 pauperis or to pay the filing fee in this instance; and 6 2. The Clerk of the Court is directed to assign a district judge to this matter. 7 IT IS RECOMMENDED that: 8 1. Petitioner’s motion to stay the proceedings, filed on March 19, 2010 (Docket # 9 2), be denied and, 2. Petitioner's application for a writ of habeas corpus be dismissed without 10 11 prejudice for failure to exhaust state remedies. These findings and recommendations are submitted to the United States District 12 13 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen 14 days after being served with these findings and recommendations, any party may file written 15 objections with the court and serve a copy on all parties. Such a document should be captioned 16 “Objections to Magistrate Judge's Findings and Recommendations.” Any reply to the objections 17 shall be served and filed within fourteen days after service of the objections. The parties are 18 advised that failure to file objections within the specified time may waive the right to appeal the 19 District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 20 DATED: April 2, 2010 21 /s/ Gregory G. Hollows 22 GREGORY G. HOLLOWS UNITED STATES MAGISTRATE JUDGE 23 24 GGH:009 corn0654.dis 25 26 4
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