(HC) Murray v. Matteson ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 TERRANCE EDWARD MURRAY, No. 2:20-cv-0777 AC P 12 Petitioner, 13 v. ORDER AND FINDINGS AND RECOMMENDATIONS 14 GIGI MATTESON, 15 Respondent. 16 17 Petitioner, a state prisoner proceeding pro se, has filed an application for a writ of habeas 18 corpus pursuant to 28 U.S.C. § 2254. ECF No. 1. Petitioner has paid the filing fee pursuant to 28 19 U.S.C. § 1914. 20 The exhaustion of state court remedies is a prerequisite to the granting of a petition for 21 writ of habeas corpus. 28 U.S.C. § 2254(b)(1). If exhaustion is to be waived, it must be waived 22 explicitly by respondent’s counsel. 28 U.S.C. § 2254(b)(3).1 A waiver of exhaustion, thus, may 23 not be implied or inferred. A petitioner satisfies the exhaustion requirement by providing the 24 highest state court with a full and fair opportunity to consider all claims before presenting them to 25 the federal court. Picard v. Connor, 404 U.S. 270, 276 (1971); Middleton v. Cupp, 768 F.2d 26 1083, 1086 (9th Cir. 1985), cert. denied, 478 U.S. 1021 (1986). 27 1 A petition may be denied on the merits without exhaustion of state court remedies. 28 U.S.C. § 28 2254(b)(2). 2 OU OUEAINIT ENN MMU ON vee AY ee 1 After reviewing the petition for habeas corpus, the court finds that petitioner has failed to 2 | exhaust state court remedies. The claims have not been presented to the California Supreme 3 || Court. See ECF No. 1 at 2-5 (petitioner stating he has not appealed judgment of conviction to 4 | highest state court). Further, there is no allegation that state court remedies are no longer 5 || available to petitioner. See generally ECF No. 1. Accordingly, the petition should be dismissed 6 || without prejudice.” 7 Good cause appearing, IT IS HEREBY ORDERED that the Clerk of Court shall: 8 1. Randomly assign a District Court Judge to this action, and 9 2. Serve a copy of these findings and recommendations together with a copy of the 10 | petition filed in the instant case on the Attorney General of the State of California. 11 IT IS FURTHER RECOMMENDED that petitioner’s application for a writ of habeas 12 || corpus be DISMISSED for failure to exhaust state remedies. 13 These findings and recommendations will be submitted to the United States District Judge 14 || assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within twenty-one days 15 || after being served with these findings and recommendations, petitioner may file written 16 || objections with the court. The document should be captioned “Objections to Findings and 17 || Recommendations.” Petitioner is advised that failure to file objections within the specified time 18 || may waive the right to appeal the District Court’s order. Martinez v. YIst, 951 F.2d 1153 (9th 19 | Cir. 1991). 20 | DATED: June 2, 2020 ~ 21 Chthien—Chare ALLISON CLAIRE 22 UNITED STATES MAGISTRATE JUDGE 23 24 25 2 Petitioner is cautioned that the habeas corpus statute imposes a one-year statute of limitations 26 || 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 27 || 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 28 | review is pending. 28 U.S.C. § 2244(d).