(HC) Vang v. Covello ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 YOULEE VANG, No. 2:20-cv-0193 WBS KJN P 12 Petitioner, 13 v. FINDINGS AND RECOMMENDATIONS 14 PATRICK COVELLO, 15 Respondent. 16 17 Petitioner, a state prisoner, proceeds pro se with an application for a writ of habeas corpus 18 pursuant to 28 U.S.C. § 2254. Petitioner’s sole claim is that there was insufficient evidence to 19 support his conviction. On May 7, 2020, respondent filed a motion to dismiss the application 20 because it is wholly unexhausted. Petitioner did not file an opposition to the motion or otherwise 21 respond. 22 The exhaustion of state court remedies is a prerequisite to the granting of a petition for 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 1 A petition may be denied on the merits without exhaustion of state court remedies. 28 U.S.C. 28 § 2254(b)(2). 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 As argued by respondent, the petition for review filed in the California Supreme Court did 4 not raise an insufficiency of the evidence claim. (ECF No. 15-3 at 2.) Rather, petitioner alleged 5 he was not provided sufficient notice under California Penal Code Section 1009 (ECF No. 15-3 at 6 10), and that he was prejudiced by the trial court’s refusal to instruct the jury on the definition of 7 “abiding conviction” (ECF No. 15-3 at 20). Petitioner did not file a petition for writ of habeas 8 corpus in the California Supreme Court. 9 The pending motion should be granted because petitioner failed to exhaust state court 10 remedies. The instant claims have not been presented to the California Supreme Court. Further, 11 there is no allegation that state court remedies are no longer available to petitioner. Accordingly, 12 the petition should be dismissed without prejudice.2 13 Good cause appearing, IT IS HEREBY RECOMMENDED that: 14 1. Respondent’s motion to dismiss (ECF No. 14) be granted; and 15 2. Petitioner’s application for a writ of habeas corpus be dismissed, without prejudice, for 16 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 thirty days after 19 being served with these findings and recommendations, any party may file written objections with 20 the court and serve a copy on all parties. Such a document should be captioned “Objections to 21 Magistrate Judge’s Findings and Recommendations.” If petitioner files objections, he shall also 22 address whether a certificate of appealability should issue and, if so, why and as to which issues. 23 A certificate of appealability may issue under 28 U.S.C. § 2253 “only if the applicant has made a 24 substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(3). Any 25 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 26 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). MASS 2 OU VEY EYE DOING IN MUI I ee TP Yt VM VI 1 | response to the objections shall be served and filed within fourteen days after service of the 2 | objections. The parties are advised that failure to file objections within the specified time may 3 | waive the right to appeal the District Court’s order. Martinez v. Y1st, 951 F.2d 1153 (9th Cir. 4 1991). 5 | Dated: June 23, 2020 Fens Arn 7 KENDALL J. NE jvang(0193.mtd UNITED STATES MAGISTRATE JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28