(HC) Mays v. Paramo, No. 2:2018cv01897 - Document 12 (E.D. Cal. 2018)

Court Description: ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kendall J. Newman on 7/17/2018 GRANTING 2 Motion to Proceed IFP; DENYING 4 Motion for Appointment of Counsel; DIRECTING Clerk of Court to assign a district judge to this action; D IRECTING Clerk of Court to serve a copy of these findings and recommendations and a copy of 1 Petition on the Attorney General of the State of California; and RECOMMENDING 1 Petition for Writ of Habeas Corpus be dismissed for failure to exhaust state remedies. Assigned and referred to Judge Troy L. Nunley. Objections due within 14 days after being served with these findings and recommendations. (cc: Attorney General of the State of California) (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 JACOREY L. MAYS, 12 No. 2:18-cv-1897 KJN P Petitioner, 13 v. 14 ORDER AND FINDINGS AND RECOMMENDATIONS DAVID PARAMO, 15 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 will be 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).1 A waiver of exhaustion, thus, may 25 not be implied or inferred. A petitioner satisfies the exhaustion requirement by providing the 26 highest state court with a full and fair opportunity to consider all claims before presenting them to 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 the federal court. Picard v. Connor, 404 U.S. 270, 276 (1971); Middleton v. Cupp, 768 F.2d 2 1083, 1086 (9th Cir. 1985), cert. denied, 478 U.S. 1021 (1986). 3 After reviewing the petition for habeas corpus, the court finds that petitioner has failed to 4 exhaust state court remedies. The claims have not been presented to the California Supreme 5 Court.2 Further, there is no allegation that state court remedies are no longer available to 6 petitioner. Accordingly, the petition should be dismissed without prejudice.3 Because the undersigned recommends this action be dismissed, petitioner’s motion for 7 8 appointment of counsel is denied. 9 Good cause appearing, IT IS HEREBY ORDERED that: 10 1. Petitioner is granted leave to proceed in forma pauperis; 11 2. Petitioner’s motion for appointment of counsel (ECF No. 4) is denied; and 12 3. The Clerk of the Court is directed to serve a copy of these findings and 13 recommendations together with a copy of the petition filed in the instant case on the Attorney 14 General of the State of California; 15 4. The Clerk of the Court is directed to assign a district judge to this action; and 16 IT IS HEREBY RECOMMENDED that petitioner’s application for a writ of habeas 17 corpus be dismissed for failure to exhaust state remedies. 18 These findings and recommendations are submitted to the United States District Judge 19 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 20 24 The court may take judicial notice of facts that are “not subject to reasonable dispute because it . . . can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned,” Fed. R. Evid. 201(b), including undisputed information posted on official websites. Daniels-Hall v. National Education Association, 629 F.3d 992, 999 (9th Cir. 2010). It is appropriate to take judicial notice of the docket sheet of a California court. White v. Martel, 601 F.3d 882, 885 (9th Cir. 2010). The address of the official website of the California state courts is www.courts.ca.gov. 25 3 21 22 23 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 1 after being served with these findings and recommendations, any party may file written 2 objections with the court and serve a copy on all parties. Such a document should be captioned 3 “Objections to Magistrate Judge’s Findings and Recommendations.” If petitioner files objections, 4 he shall also address whether a certificate of appealability should issue and, if so, why and as to 5 which issues. A certificate of appealability may issue under 28 U.S.C. § 2253 “only if the 6 applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. 7 § 2253(c)(3). Any response to the objections shall be served and filed within fourteen days after 8 service of the objections. The parties are advised that failure to file objections within the 9 specified time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 10 F.2d 1153 (9th Cir. 1991). 11 Dated: July 17, 2018 12 13 /mays1897.103 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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