(HC) Belyew v. Honea, No. 2:2017cv01950 - Document 7 (E.D. Cal. 2017)

Court Description: ORDER, FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kendall J. Newman on 12/13/2017 GRANTING petitioner's 4 , 5 request to proceed IFP and DIRECTING the Clerk to serve a copy of these findings and recommendations with a copy of the petition on the AG for the State of California, and the Clerk shall assign a district judge to this action. IT IS RECOMMENDED that petitioner's 1 application for writ of habeas corpus be dismissed for failure to exhaust state remedies. Assigned and referred to Judge Morrison C. England, Jr.; Objections to F&R due within 14 days. (cc: Tami Krenzin) (Yin, K)

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(HC) Belyew v. Honea Doc. 7 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 LISA BELYEW, 12 Petitioner, 13 14 No. 2:17-cv-1950 KJN P v. SHERIFF HONEA, 15 ORDER AND FINDINGS AND RECOMMENDATIONS Respondent. 16 Petitioner, a county inmate proceeding pro se, has filed an application for a writ of habeas 17 18 corpus pursuant to 28 U.S.C. § 2254 together with a request to proceed in forma pauperis 19 pursuant to 28 U.S.C. § 1915. Petitioner submitted a declaration that makes the showing required 20 by § 1915(a). Accordingly, the request to proceed in forma pauperis will be granted. 21 28 U.S.C. § 1915(a). The petition raises three claims for relief. Petitioner alleges that she raised these claims in 22 23 a habeas corpus petition that is now pending in the California Supreme Court. The exhaustion of state court remedies is a prerequisite to the granting of a petition for 24 25 writ of habeas corpus. 28 U.S.C. § 2254(b)(1). If exhaustion is to be waived, it must be waived 26 explicitly by respondent’s counsel. 28 U.S.C. § 2254(b)(3).1 A waiver of exhaustion, thus, may 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 Dockets.Justia.com 1 not be implied or inferred. A petitioner satisfies the exhaustion requirement by providing the 2 highest state court with a full and fair opportunity to consider all claims before presenting them to 3 the federal court. Picard v. Connor, 404 U.S. 270, 276 (1971); Middleton v. Cupp, 768 F.2d 4 1083, 1086 (9th Cir. 1985), cert. denied, 478 U.S. 1021 (1986). 5 After reviewing the petition for habeas corpus, the court finds that petitioner has failed to 6 exhaust state court remedies. The claims are still pending before the California Supreme Court. 7 Further, there is no allegation that state court remedies are no longer available to petitioner. 8 Accordingly, the petition should be dismissed without prejudice.2 9 Good cause appearing, IT IS HEREBY ORDERED that: 10 1. Petitioner is granted leave to proceed in forma pauperis; 11 2. The Clerk of the Court is directed to serve a copy of these findings and 12 recommendations together with a copy of the petition filed in the instant case on the Attorney 13 General of the State of California; 14 3. The Clerk of the Court is directed to assign a district judge to this action; and 15 IT IS HEREBY RECOMMENDED that petitioner’s application for a writ of habeas 16 corpus be dismissed for failure to exhaust state remedies. 17 These findings and recommendations are submitted to the United States District Judge 18 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 19 after being served with these findings and recommendations, petitioner may file written 20 objections with the court and serve a copy on all parties. Such a document should be captioned 21 “Objections to Magistrate Judge’s Findings and Recommendations.” If petitioner files objections, 22 she shall also address whether a certificate of appealability should issue and, if so, why and as to 23 //// 24 //// 25 2 26 27 28 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 1 which issues. A certificate of appealability may issue under 28 U.S.C. § 2253 “only if the 2 applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. 3 § 2253(c)(3). 4 Dated: December 13, 2017 5 6 7 8 Bel1950.dis 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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