(HC) Maquinales v. Spearman ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 RICHARD MAQUINALES, No. 2:19-cv-1242 CKD P 12 Petitioner, 13 v. ORDER AND 14 SPEARMAN, FINDINGS AND RECOMMENDATIONS 15 Respondent. 16 17 Petitioner is a California prisoner proceeding pro se with an application for writ of habeas 18 corpus under 28 U.S.C. § 2254. Petitioner challenges the determination made by the California 19 Department of Corrections and Rehabilitation as to the length of his sentence. While not entirely 20 clear, petitioner seems to assert he is due for release. 21 Respondent has filed a motion to dismiss arguing, in part, that plaintiff has not exhausted 22 state court remedies with respect to his claims. The exhaustion of state court remedies is a 23 prerequisite to the granting of a petition for writ of habeas corpus. 28 U.S.C. § 2254(b)(1). A 24 petitioner satisfies the exhaustion requirement by providing the highest state court with a full and 25 fair opportunity to consider all claims before presenting them to the federal court. Picard v. 26 Connor, 404 U.S. 270, 276 (1971). 27 Respondent points to evidence indicating that petitioner has not presented his claims to the 28 California Supreme Court. Petitioner does not assert he did, nor explain why not. Accordingly. 1 the court will recommend that respondent’s motion to dismiss be granted, and this case be 2 closed.1 In light of the foregoing, the court need not address respondent’s argument that 3 petitioner fails to assert a claim arising under federal law. 4 Accordingly, IT IS HEREBY ORDERED that the Clerk of the Court assign a district 5 court judge to this case. 6 IT IS HEREBY RECOMMENDED that: 7 1. Respondent’s motion to dismiss (ECF No. 11) be granted; 8 2. Petitioner’s application for a writ of habeas corpus be dismissed; and 9 3. This case be closed. 10 These findings and recommendations are submitted to the United States District Judge 11 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 12 after being served with these findings and recommendations, any party may file written 13 objections with the court and serve a copy on all parties. Such a document should be captioned 14 “Objections to Magistrate Judge’s Findings and Recommendations.” In his objections petitioner 15 16 1 Petitioner is informed that 28 U.S.C. § 2244(d)(1) provides: 17 A 1–year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of 18 a State court. The limitation period shall run from the latest of— 19 (A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such 20 review; 21 (B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of 22 the United States is removed, if the applicant was prevented from 23 filing by such State action; 24 (C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly 25 recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or 26 (D) the date on which the factual predicate of the claim or claims 27 presented could have been discovered through the exercise of due diligence. 28 1 | may address whether a certificate of appealability should issue in the event he files an appeal of 2 | the judgment in this case. See Rule 11, Federal Rules Governing Section 2254 Cases (the district 3 | court must issue or deny a certificate of appealability when it enters a final order adverse to the 4 | applicant). Where, as here, a habeas petition is dismissed on procedural grounds, a certificate of 5 || appealability “should issue if the prisoner can show: (1) ‘that jurists of reason would find it 6 | debatable whether the district court was correct in its procedural ruling;’ and (2) ‘that jurists of 7 | reason would find it debatable whether the petition states a valid claim of the denial of a 8 | constitutional right.’” Morris v. Woodford, 229 F.3d 775, 780 (9th Cir. 2000) (quoting Slack v. 9 | McDaniel, 529 U.S. 473, 484 (2000)). Any response to the objections shall be served and filed 10 | within fourteen days after service of the objections. The parties are advised that failure to file 11 | objections within the specified time may waive the right to appeal the District Court’s order. 12 | Martinez v. Yist, 951 F.2d 1153 (9th Cir. 1991). 13 | Dated: April 8, 2020 Gh rd f | Gx CAROLYN K DELANEY 15 UNITED STATES MAGISTRATE JUDGE 16 17 18 | 4 19 maqu1242.exh 20 21 22 23 24 25 26 27 28