(HC)Dyer v. Superior Court of California, et al., No. 2:2018cv00814 - Document 9 (E.D. Cal. 2018)

Court Description: ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kendall J. Newman on 5/7/2018 GRANTING 8 Motion to Proceed IFP; DIRECTING Clerk of Court to serve copy of these findings and recommendations with a copy of the petition on the Attorn ey General of the State of California; DIRECTING Clerk of Court to assign a district judge to this action; and RECOMMENDING 1 Application for a Writ of Habeas Corpus be dismissed for failure to exhaust state remedies. Assigned and referred to Judge William B. Shubb. Objections due within 14 days after being served with these findings and recommendations. (cc: Tami Krenzin, Attorney General) (Henshaw, R)

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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 ANTHONY SCOTT DYER, 12 Petitioner, 13 14 v. WILLIAM “JOE” SULLIVAN,1 15 No. 2:18-cv-0814 KJN P ORDER AND FINDINGS AND RECOMMENDATIONS Respondent. 16 Petitioner, a state prisoner 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 is granted. 28 U.S.C. 21 § 1915(a). The exhaustion of state court remedies is a prerequisite to the granting of a petition for 22 23 writ of habeas corpus. 28 U.S.C. § 2254(b)(1). If exhaustion is to be waived, it must be waived 24 explicitly by respondent’s counsel. 28 U.S.C. § 2254(b)(3).2 A waiver of exhaustion, thus, may 25 1 26 27 28 William Sullivan, current warden of the California Correctional Center, is the proper respondent. Fed. R. Civ. P. 25(d); see Stanley v. California Supreme Court, 21 F.3d 359, 360 (9th Cir. 1994). 2 A petition may be denied on the merits without exhaustion of state court remedies. 28 U.S.C. § 2254(b)(2). 1 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 have not been presented to the California Supreme 7 Court. Further, there is no allegation that state court remedies are no longer available to 8 petitioner. Accordingly, the petition should be dismissed without prejudice.3 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; and 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, any party 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 he shall also address whether a certificate of appealability should issue and, if so, why and as to 23 which issues. A certificate of appealability may issue under 28 U.S.C. § 2253 “only if the 24 applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. 25 3 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 § 2253(c)(3). Any response to the objections shall be served and filed within fourteen days after 2 service of the objections. The parties are advised that failure to file objections within the 3 specified time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 4 F.2d 1153 (9th Cir. 1991). 5 Dated: May 7, 2018 6 7 /dyer0814.103 8 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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