(HC) Owens v. People of the State of California et al, No. 2:2015cv01286 - Document 11 (E.D. Cal. 2015)

Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Gregory G. Hollows on 10/19/15 RECOMMENDING that the petition, ECF No. 1 , be DISMISSED without prejudice. Referred to Judge Kimberly J. Mueller; Objections to F&R due within 14 days.(Dillon, M)

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(HC) Owens v. People of the State of California et al Doc. 11 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 KENNETH O. OWENS, Plaintiff, 12 13 14 No. 2:15-cv-01286-KJM-GGH v. FINDINGS & RECOMMENDATIONS PEOPLE OF THE STATE OF CALIFORNIA, et al., 15 Defendants. 16 17 Petitioner is a state prisoner proceeding pro se with an application for a writ of habeas 18 corpus pursuant to 28 U.S.C. § 2254. On July 20, 2015, the court ordered petitioner to show 19 cause why the petition should not be dismissed without prejudice for failure to exhaust his state 20 court remedies. ECF No. 7. On August 3, 2015, petitioner filed a response to the court’s order to 21 show cause. ECF No. 9. The court finds that petitioner has not shown that he has exhausted his 22 state court remedies and accordingly, will recommend that his petition be dismissed. 23 The exhaustion of state court remedies is a prerequisite to the granting of a petition for 24 writ of habeas corpus. 28 U.S.C. § 2254(b)(1). If exhaustion is to be waived, it must be waived 25 explicitly by respondent’s counsel. 28 U.S.C. § 2254(b)(3). A waiver of exhaustion, thus, may 26 not be implied or inferred. A petitioner satisfies the exhaustion requirement by providing the 27 highest state court with a full and fair opportunity to consider all claims before presenting them to 28 the federal court. Picard v. Connor, 404 U.S. 270, 276 (1971); Middleton v. Cupp, 768 F.2d 1 Dockets.Justia.com 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 1083, 1086 (9th Cir. 1985). It is not enough that all the facts necessary to support the federal claim were before the state courts, Picard, 404 U.S. at 277, or that a somewhat similar state-law claim was made. See Duncan v. Henry, 513 U.S. 364, 366 (1995). The habeas petitioner must have “fairly presented” to the state courts the “substance” of his federal habeas corpus claim. Picard, 404 U.S. at 275, 277–78; see also Rose v. Lundy, 455 U.S. 509, 520 (1982). Petitioner has the burden of proving exhaustion of state court remedies and in California a petitioner must present his claims to the California Supreme Court. Cartwright v. Cupp, 650 F.2d 1103, 1104 (9th Cir. 1981); Kim v. Villalobos, 799 F.2d 1317, 1319 (9th Cir. 1986). Petitioner concedes that his habeas claims are currently pending before the California Court of Appeals. ECF No. 9 at 1 (“Petitioner Kenneth O. Owens is a state prisoner currently proceeding pro se with a pending habeas corpus in the appellate court . . . .”), 3 (“[T]he matter is currently pending in appellate court . . . .”). However, he argues that his petition should not be dismissed because (1) his claims are based on newly discovered evidence and (2) his counsel at the appellate level neglected to assert his claims. Id. at 2–3. While these arguments might help explain a failure to comply with the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 28 U.S.C. § 2244(d) one year statute of limitations, they are irrelevant to petitioner’s failure to exhaust his state court remedies. Accordingly, the court finds that petitioner has not exhausted his state court remedies and will recommend his petition be dismissed without prejudice to re-filing once he has. In accordance with the foregoing, THE COURT HEREBY RECOMMENDS that the petition, ECF No. 1, be DISMISSED without prejudice. These findings and recommendations are submitted to the United States District Judge to be assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days after being served with these findings and recommendations, petitioner may file written objections with the court. Id.; see also Local Rule 304(b). Such a document should be captioned “Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections 28 2 1 2 3 4 within the specified time may waive the right to appeal the District Court’s order. Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153, 1156–57 (9th Cir. 1991). Dated: October 19, 2015 5 /s/ Gregory G. Hollows 6 UNITED STATES MAGISTRATE JUDGE 7 8 9 10 11 12 /owen1286.dism 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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