(HC) Hann v. State of California, No. 2:2011cv03354 - Document 8 (E.D. Cal. 2012)

Court Description: ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kendall J. Newman on 12/30/11 ORDERING that 2 Motion to Proceed IFP is GRANTED; and Clerk of the Court assign a district judge to this matter; and it is RECOMMENDED that petitioners application for a writ of habeas corpus be dismissed for failure to exhaust state remedies. Referred to Judge Kimberly J. Mueller; Objections to F&R due within 20 days. (Dillon, M)

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(HC) Hann v. State of California Doc. 8 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 EVAN HANN, 11 12 13 Petitioner, No. 2: 11-cv-3354 KJN P vs. STATE OF CALIFORNIA, et al., 14 Respondents. 15 ORDER AND / FINDINGS AND RECOMMENDATIONS 16 Petitioner, a state prisoner proceeding without counsel or “pro se”, has filed an 17 application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 together with a request to 18 proceed in forma pauperis pursuant to 28 U.S.C. § 1915. Petitioner has submitted a declaration 19 that makes the showing required by § 1915(a). Accordingly, the request to proceed in forma 20 pauperis will be granted. 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. 28 U.S.C. § 2254(b)(1). If exhaustion is to be waived, it must 23 be waived explicitly by respondent’s counsel. 28 U.S.C. § 2254(b)(3).1 A waiver of exhaustion, 24 thus, may not be implied or inferred. A petitioner satisfies the exhaustion requirement by 25 1 26 A petition may be denied on the merits without exhaustion of state court remedies. 28 U.S.C. § 2254(b)(2). 1 Dockets.Justia.com 1 providing the highest state court with a full and fair opportunity to consider all claims before 2 presenting them to the federal court. Picard v. Connor, 404 U.S. 270, 276 (1971); Middleton v. 3 Cupp, 768 F.2d 1083, 1086 (9th Cir.), cert. denied, 478 U.S. 1021 (1986). 4 After reviewing the petition for habeas corpus, the court finds that petitioner has 5 failed to exhaust state court remedies. The claims have not been presented to the California 6 Supreme Court. Further, there is no allegation that state court remedies are no longer available to 7 petitioner. Accordingly, the petition should be dismissed without prejudice.2 8 Good cause appearing, IT IS HEREBY ORDERED that: 9 1. Petitioner’s motion to proceed in forma pauperis (Dkt. No. 2) is granted; and 10 2. The Clerk of the Court assign a district judge to this matter; and 11 IT IS HEREBY RECOMMENDED that petitioner’s application for a writ of 12 habeas corpus be dismissed for failure to exhaust state remedies. 13 These findings and recommendations will be submitted to the United States 14 District Judge assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 15 twenty days after being served with these findings and recommendations, petitioner may file 16 written objections with the court. The document should be captioned “Objections to Findings 17 and Recommendations.” Petitioner is advised that failure to file objections within the specified 18 time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 19 (9th Cir. 1991). 20 DATED: December 30, 2011 _____________________________________ KENDALL J. NEWMAN UNITED STATES MAGISTRATE JUDGE 21 22 ha3354.osc 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). 2

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