(HC) Lambert v. State of California ( 2019 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 QUINTON W. LAMBERT, ) Case No.: 1:19-cv-00920-JLT (HC) ) 12 Petitioner, ) ORDER DIRECTING CLERK OF COURT TO ) ASSIGN DISTRICT JUDGE 13 v. ) ) FINDINGS AND RECOMMENDATION 14 STATE OF CALIFORNIA, ) DISMISSING UNEXHAUSTED PETITION 15 Respondent. ) ) [TWENTY-ONE DAY OBJECTION DEADLINE] 16 ) 17 Petitioner filed a habeas petition on June 28, 2019, challenging his 2018 conviction in 18 Stanislaus County Superior Court. Because the petition appears to be unexhausted, the Court will 19 recommend it be DISMISSED WITHOUT PREJUDICE. 20 DISCUSSION 21 A. Preliminary Review of Petition 22 Rule 4 of the Rules Governing Section 2254 Cases allows a district court to dismiss a petition 23 if it “plainly appears from the petition and any attached exhibits that the petitioner is not entitled to 24 relief in the district court . . . .” Rule 4 of the Rules Governing Section 2254 Cases. The Advisory 25 Committee Notes to Rule 8 indicate that the court may dismiss a petition for writ of habeas corpus, 26 either on its own motion under Rule 4, pursuant to the respondent’s motion to dismiss, or after an 27 answer to the petition has been filed. Herbst v. Cook, 260 F.3d 1039 (9th Cir. 2001). 28 /// 1 B. Exhaustion 2 A petitioner who is in state custody and wishes to collaterally challenge his conviction by a 3 petition for writ of habeas corpus must exhaust state judicial remedies. 28 U.S.C. § 2254(b)(1). The 4 exhaustion doctrine is based on comity to the state court and gives the state court the initial 5 opportunity to correct the state's alleged constitutional deprivations. Coleman v. Thompson, 501 U.S. 6 722, 731 (1991); Rose v. Lundy, 455 U.S. 509, 518 (1982). 7 Federal habeas review is unavailable until state remedies are exhausted, even if the particular 8 claim brought in federal court has been finally settled by the state courts. Thus, when an appeal of a 9 state criminal conviction is pending, a would-be habeas corpus petitioner must await the outcome of 10 his direct appeal before his state remedies are exhausted, even where the issue to be challenged in the 11 federal writ of habeas corpus has been finally resolved in the state courts. Sherwood v. Tomkins, 716 12 F.2d 632, 634 (9th Cir. 1983); see also Schnepp v. State of Or., 333 F.2d 288 (9th Cir. 1964); Woods 13 v. Gilmore, 26 F. Supp. 2d 1093, 1095 (C.D. Ill. 1998). 14 Petitioner indicates that his direct appeal is still pending at the California Court of Appeal, 15 Fifth Appellate District. Accordingly, the petition is premature, and the Court must dismiss this 16 petition. See Sherwood, 716 F.2d at 634. The Court cannot consider a petition that is entirely 17 unexhausted. Rose v. Lundy, 455 U.S. 509, 521-22 (1982). Petitioner also filed habeas corpus 18 petitions in the Fifth DCA and the California Supreme Court, however, both were denied. (Doc. 1 at 19 18, 26.) These petitions were also procedurally improper as Petitioner cannot seek state post- 20 conviction relief before the outcome of the direct appeal. See In re Dixon, 41 Cal. 2d 756, 759 (1953). 21 ORDER 22 The Court DIRECTS the Clerk of the Court to assign a United States District Judge to this 23 case. 24 RECOMMENDATION 25 Accordingly, the Court RECOMMENDS that the Petition for Writ of Habeas Corpus be 26 DISMISSED WITHOUT PREJUDICE for lack of jurisdiction. 27 This Findings and Recommendation is submitted to the United States District Court Judge 28 assigned to the case pursuant to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 72-304 of the 1 Local Rules of Practice for the United States District Court, Eastern District of California. Within 2 twenty-one days after being served with a copy of this Findings and Recommendation, Petitioner may 3 file written objections with the Court. Such a document should be captioned “Objections to 4 Magistrate Judge’s Findings and Recommendation.” The Court will then review the Magistrate 5 Judge’s ruling pursuant to 28 U.S.C. § 636 (b)(1)(C). Petitioner is advised that failure to file 6 objections within the specified time may waive the right to appeal the Order of the District Court. 7 Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 8 9 IT IS SO ORDERED. 10 Dated: August 21, 2019 /s/ Jennifer L. Thurston 11 UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28