(HC)Colvard v. Sacramento County Superior Court, No. 2:2013cv01709 - Document 10 (E.D. Cal. 2013)

Court Description: ORDER, FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Gregory G. Hollows on 9/9/13 ORDERING that a district judge be assigned to this case; and the Clerk of the Court is directed to serve a copy of these findings and recommendations togethe r with a copy of the petition filed in the instant case on the Attorney General of the State of California; andIT IS HEREBY RECOMMENDED that petitioners application for a writ of habeas corpus be dismissed for failure to exhaust state remedies. Referred to Judge John A. Mendez; Objections to F&R due within 14 days. (cc Michael Farrell)(Dillon, M)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 CURTIS D. COLVARD, 12 Petitioner, 13 14 15 No. 2:13-cv-1709 GGH P v. ORDER AND FINDINGS AND RECOMMENDATIONS SACRAMENTO COUNTY SUPERIOR COURT, Respondent. 16 17 Petitioner, a state prisoner proceeding pro se, has filed an application for a writ of habeas 18 19 corpus pursuant to 28 U.S.C. § 2254. The exhaustion of state court remedies is a prerequisite to the granting of a petition for 20 21 writ of habeas corpus. 28 U.S.C. § 2254(b)(1). If exhaustion is to be waived, it must be waived 22 explicitly by respondent’s counsel. 28 U.S.C. § 2254(b)(3).1 A waiver of exhaustion, thus, may 23 not be implied or inferred. A petitioner satisfies the exhaustion requirement by providing the 24 highest state court with a full and fair opportunity to consider all claims before presenting them to 25 the federal court. Picard v. Connor, 404 U.S. 270, 276 (1971); Middleton v. Cupp, 768 F.2d 26 1083, 1086 (9th Cir. 1985), cert. denied, 478 U.S. 1021 (1986). 27 28 1 A petition may be denied on the merits without exhaustion of state court remedies. 28 U.S.C. § 2254(b)(2). 1 1 After reviewing the petition for habeas corpus, the court finds that petitioner has failed to 2 exhaust state court remedies. The claims have not been presented to the California Supreme 3 Court. Further, there is no allegation that state court remedies are no longer available to 4 petitioner. Accordingly, the petition should be dismissed without prejudice.2 5 Good cause appearing, IT IS HEREBY ORDERED that: 6 1. A district judge be assigned to this case; and 7 2. The Clerk of the Court is directed to serve a copy of these findings and 8 recommendations together with a copy of the petition filed in the instant case on the Attorney 9 General of the State of California; and IT IS HEREBY RECOMMENDED that petitioner’s application for a writ of habeas 10 11 corpus be dismissed for failure to exhaust state remedies. 12 These findings and recommendations will be submitted to the United States District Judge 13 assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 14 after being served with these findings and recommendations, petitioner may file written 15 objections with the court. The document should be captioned “Objections to Findings and 16 Recommendations.” Petitioner is advised that failure to file objections within the specified 17 time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 18 (9th Cir. 1991). 19 Dated: September 9, 2013 20 /s/ Gregory G. Hollows 21 UNITED STATES MAGISTRATE JUDGE 22 GGH:076/Colv1709.103 23 24 25 26 27 28 2 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