(HC) Junkin v. Hill, No. 2:2018cv00290 - Document 14 (E.D. Cal. 2018)
Court Description: ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Deborah Barnes on 3/19/18 GRANTING 9 Motion to Proceed IFP and DENYING 10 Motion to Appoint Counsel. Also, RECOMMENDING that petitioner's motion for a stay of these proceedings 12 be denied. Petitioner's petition be dismissed without prejudice for failure to exhaust state remedies. Motion to stay 12 referred to Judge Troy L. Nunley. Objections due within 14 days.(Plummer, M)
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(HC) Junkin v. Hill Doc. 14 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ANTHONY JUNKIN, 12 Petitioner, 13 v. 14 RON RACKLEY, 15 No. 2:18-cv-0290 TLN DB P ORDER AND FINDINGS AND RECOMMENDATIONS Respondent. 16 17 Petitioner is a state prisoner proceeding pro se. Petitioner has filed a motion to proceed in 18 forma pauperis (“IFP”), a petition for a writ of habeas corpus under 28 U.S.C. § 2254, a motion to 19 stay these proceedings while he exhausts his state remedies, and a motion for the appointment of 20 counsel. For the reasons set forth below, the court will grant petitioner’s motion to proceed IFP, 21 deny petitioner’s motion for the appointment of counsel, and recommend petitioner’s motion to 22 stay be denied and the petition be dismissed without prejudice. 23 With respect to petitioner’s motion for a stay and filing of a petition, there appears to be 24 some confusion about the court’s prior order. On February 7, 2018, petitioner initiated this action 25 by filing a request for an extension of time to file a habeas petition. (ECF No. 1.) In that request, 26 petitioner explained that he had not yet exhausted his state court remedies. Exhaustion of state 27 remedies is required before this court may consider a habeas corpus petition. See 28 U.S.C. § 28 2254(b). Generally, where it is clear from the face of a petition that claims are not exhausted, this 1 Dockets.Justia.com 1 court must dismiss the petition. Rule 4, Rules Governing § 2254 Cases; Hendricks v. Vasquez, 2 908 F.2d 490 (9th Cir. 1990). 3 In an order filed February 12, 2018, the court informed petitioner that if he was reasonably 4 confused about whether his state court petitions were “properly filed” so that they would toll the 5 federal statute of limitations, he could file a protective petition in this court and also request a 6 stay. (ECF No. 3.) Petitioner was given the option of filing a protective petition. If he did not do 7 so, the court advised petitioner that this proceeding would be dismissed. To be clear, dismissal of 8 this proceeding would be without prejudice to petitioner’s ability to file a petition for a writ of 9 habeas corpus after he has exhausted his state remedies. 10 On March 12, 2018, petitioner filed a petition for writ of habeas corpus, a motion to 11 appoint counsel, and a motion for a stay. (ECF Nos. 8, 10, 12.) In those filings, petitioner 12 explains that he felt the court’s February 12 order required him to file a petition. It does not 13 appear that petitioner intends to file a protective petition as described in Pace v. DiGuglielmo, 14 544 U.S. 408, 416 (2005). And, while petitioner seeks a stay, he provides no basis for the court to 15 find that he is reasonably confused about whether his state petitions have been properly filed 16 under 28 U.S.C. § 2244(d)(2). In fact, in a document filed here on February 23, 2018, petitioner 17 stated that his state petitions have been properly filed. (ECF No. 4.) 18 Petitioner need not file here prior to exhaustion of his state remedies in order to have the 19 court find that his state court petitions were “properly filed” under 28 U.S.C. § 2244(d)(2) and 20 entitle him to tolling of the statute of limitations. The court will recommend dismissal of the 21 petition for failure to exhaust. When petitioner has exhausted his state court remedies, he may 22 file a petition for a writ of habeas corpus in this court. 23 Accordingly, IT IS HEREBY ORDERED as follows: 24 25 1. Examination of the in forma pauperis application reveals that petitioner is unable to 26 afford the costs of suit. (ECF Nos. 9, 13.) Accordingly, the application to proceed in 27 forma pauperis is granted. See 28 U.S.C. § 1915(a). 28 //// 2 1 2 2. Because the court recommends dismissal of this action, petitioner’s motion for the appointment of counsel (ECF No. 10) is denied. 3 Further, IT IS RECOMMENDED that: 4 1. Petitioner’s motion for a stay of these proceedings (ECF No. 12) be denied; and 5 2. Petitioner’s petition be dismissed without prejudice for failure to exhaust state 6 7 remedies. These findings and recommendations will be submitted to the United States District Judge 8 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 9 after being served with these findings and recommendations, petitioner may file written 10 objections with the court. The document should be captioned “Objections to Magistrate Judge's 11 Findings and Recommendations.” Petitioner is advised that failure to file objections within the 12 specified time may result in waiver of the right to appeal the district court’s order. Martinez v. 13 Ylst, 951 F.2d 1153 (9th Cir. 1991). In his objections petitioner may address whether a certificate 14 of appealability should issue in the event he files an appeal of the judgment in this case. See Rule 15 11, Rules Governing § 2254 Cases (the district court must issue or deny a certificate of 16 appealability when it enters a final order adverse to the applicant). 17 Dated: March 19, 2018 18 19 20 21 22 DLB:9 DLB1/prisoner-habeas/junk0290.fr 23 24 25 26 27 28 3
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