(HC) Vasquez v. The People of the State of California, No. 2:2010cv01189 - Document 4 (E.D. Cal. 2010)

Court Description: ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kendall J. Newman on 5/21/10 ORDERING that Clerk shall assign a district judge to this case; RECOMMENDING that the 1 instant petition for writ of habeas corpus be dismissed with prejudice; and Clerk of Court be directed to close this case. Referred to Judge Frank C. Damrell, Jr.; Objections to F&R due within 21 days.(Dillon, M)

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(HC) Vasquez v. The People of the State of California Doc. 4 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 JOSE FEDERICO VASQUEZ, Petitioner, 11 12 13 No. 2:10-cv-1189 KJN P vs. PEOPLE OF THE STATE OF CALIFORNIA, ORDER and FINDINGS AND RECOMMENDATIONS 14 Respondent. 15 16 / Petitioner, a state prisoner proceeding without counsel, has filed, inappropriately, 17 an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner designates 18 the petition as an “appeal” of his December 10, 2009 conviction and March 26, 2010 sentencing 19 in the Sacramento County Superior Court. (See Dkt. No. 1, at 2.) 20 The exhaustion of state court remedies is a prerequisite to the granting of a federal 21 petition for writ of habeas corpus. 28 U.S.C. § 2254(b)(1). A petitioner satisfies the exhaustion 22 requirement by providing the highest state court with a full and fair opportunity to consider all 23 claims, whether through direct appeal and/or habeas review, before presenting them to the federal 24 court. Picard v. Connor, 404 U.S. 270, 276 (1971); Middleton v. Cupp, 768 F.2d 1083, 1086 25 (9th Cir.), cert. denied, 478 U.S. 1021 (1986). 26 The failure of petitioner to exhaust state court remedies is patently apparent on the 1 Dockets.Justia.com 1 face of the petition. Because none of petitioner’s claims have been presented to the California 2 Supreme Court, the petition must be dismissed with prejudice. 3 Accordingly, IT IS HEREBY ORDERED that: 4 1. The Clerk of Court shall assign a district judge to this case. 5 Additionally, IT IS HEREBY RECOMMENDED that: 6 1. The instant petition for writ of habeas corpus (Dkt. No. 1) be dismissed with 7 prejudice; and 8 2. The Clerk of Court be directed to close this case. 9 These findings and recommendations are submitted to the United States District 10 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 21 days 11 after being served with these findings and recommendations, plaintiff may file written objections 12 with the court. The document should be captioned “Objections to Magistrate Judge’s Findings 13 and Recommendations.” Plaintiff 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: May 21, 2010 17 18 19 _____________________________________ KENDALL J. NEWMAN UNITED STATES MAGISTRATE JUDGE 20 21 22 vasq1189.dism 23 24 25 26 2

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