(HC) Aguilar v. Neuschmid ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 EDUARDO LEE AGUILAR, ) Case No.: 1:20-cv-00843-JLT (HC) ) 12 Petitioner, ) ORDER DIRECTING CLERK OF COURT TO ) ASSIGN DISTRICT JUDGE 13 v. ) ) FINDINGS AND RECOMMENDATION TO 14 ROBERT NEUSCHMID, ) DISMISS UNEXHAUSTED PETITION 15 Respondent. ) ) [THIRTY-DAY OBJECTION DEADLINE] 16 ) ) 17 18 On June 11, 2020, Petitioner filed the instant petition for writ of habeas corpus in this Court. 19 (Doc. 1.) Because the petition appears to be unexhausted, the Court will recommend it be 20 SUMMARILY DISMISSED without prejudice. 21 DISCUSSION 22 A. Preliminary Review of Petition 23 Rule 4 of the Rules Governing Section 2254 Cases requires the Court to make a preliminary 24 review of each petition for writ of habeas corpus. The Court must summarily dismiss a petition “[i]f it 25 plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in 26 the district court. . .” Rule 4; O’Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 1990). The Advisory 27 Committee Notes to Rule 8 indicate that the Court may dismiss a petition for writ of habeas corpus, 28 either on its own motion under Rule 4, pursuant to the respondent’s motion to dismiss, or after an 1 answer to the petition has been filed. 2 B. Exhaustion 3 A petitioner who is in state custody and wishes to collaterally challenge his conviction by a 4 petition for writ of habeas corpus must exhaust state judicial remedies. 28 U.S.C. § 2254(b)(1). The 5 exhaustion doctrine is based on comity to the state court and gives the state court the initial 6 opportunity to correct the state's alleged constitutional deprivations. Coleman v. Thompson, 501 U.S. 7 722, 731 (1991); Rose v. Lundy, 455 U.S. 509, 518 (1982). 8 A petitioner can satisfy the exhaustion requirement by providing the highest state court with a 9 full and fair opportunity to consider each claim before presenting it to the federal court. Duncan v. 10 Henry, 513 U.S. 364, 365 (1995). A federal court will find that the highest state court was given a full 11 and fair opportunity to hear a claim if the petitioner has presented the highest state court with the 12 claim's factual and legal basis. Duncan, 513 U.S. at 365 (legal basis); Kenney v. Tamayo-Reyes, 504 13 U.S. 1, 112 S.Ct. 1715, 1719 (1992) (factual basis). 14 Petitioner indicates that he appealed to the Tulare County Superior Court, however he indicates 15 he has not sought relief in the highest state court.1 (See Doc. 1 at 4, 7, 13.) Because Petitioner has not 16 presented his claims for federal relief to the California Supreme Court, the Court must dismiss the 17 petition. See Raspberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir. 2006); Jiminez v. Rice, 276 F.3d 18 478, 481 (9th Cir. 2001); Calderon v. United States Dist. Court, 107 F.3d 756, 760 (9th Cir. 1997) (en 19 banc); Greenawalt v. Stewart, 105 F.3d 1268, 1273 (9th Cir. 1997). The Court cannot consider a 20 petition that is entirely unexhausted. Rose, 455 U.S. at 521-22; Calderon, 107 F.3d at 760. Therefore, 21 the petition must be dismissed for lack of exhaustion. 22 ORDER 23 The Court DIRECTS the Clerk of Court to assign a district judge to the case. 24 RECOMMENDATION 25 Accordingly, the Court RECOMMENDS that the habeas corpus petition be SUMMARILY 26 27 1 The Court has reviewed the docket of the California Supreme Court and there is no entry indicating sought relief in that court in any habeas corpus matter. The Court may take judicial notice of sources whose accuracy cannot be reasonably 28 disputed (Fed.R.Evid. 201(b)(2)). Thus, the Court takes judicial notice of the on-line docket of the California Supreme 1 DISMISSED without prejudice for lack of jurisdiction. 2 This Findings and Recommendation is submitted to the United States District Court Judge 3 assigned to this case, pursuant to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of the 4 Local Rules of Practice for the United States District Court, Eastern District of California. Within 5 thirty days after being served with a copy, Petitioner may file written objections with the Court. Such 6 a document should be captioned “Objections to Magistrate Judge’s Findings and Recommendation.” 7 The Court will then review the Magistrate Judge’s ruling pursuant to 28 U.S.C. § 636 (b)(1)(C). 8 Failure to file objections within the specified time may waive the right to appeal the District Court’s 9 order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 10 11 IT IS SO ORDERED. 12 Dated: June 30, 2020 /s/ Jennifer L. Thurston 13 UNITED STATES MAGISTRATE JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28