(HC) Rodriguez v. Hill ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 RAUL RODRIGUEZ, No. 2: 20-cv-1268 KJN P 12 Petitioner, 13 v. ORDER AND FINDINGS AND RECOMMENDATIONS 14 RICK HILL, 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 together with a request to proceed in forma pauperis 19 pursuant to 28 U.S.C. § 1915. Petitioner submitted a declaration that makes the showing required 20 by § 1915(a). Accordingly, the request to proceed in forma pauperis is granted. 21 28 U.S.C. § 1915(a). 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 After reviewing the petition for habeas corpus, the undersigned finds that petitioner has 4 failed to exhaust state court remedies. The claims have not been presented to the California 5 Supreme Court. Further, there is no allegation that state court remedies are no longer available to 6 petitioner. Accordingly, the petition should be dismissed without prejudice.2 7 Petitioner also filed a motion for the appointment of counsel. The motion for appointment 8 of counsel is denied based on the recommendation of dismissal of this action on the grounds that 9 petitioner failed to exhaust state court remedies. 10 Good cause appearing, IT IS HEREBY ORDERED that: 11 1. Petitioner is granted leave to proceed in forma pauperis; 12 2. Petitioner’s motion for the appointment of counsel (ECF No. 5) is denied; 13 3. The Clerk of the Court is directed to appoint a district judge to this action; and 14 IT IS HEREBY RECOMMENDED that petitioner’s application for a writ of habeas 15 corpus be dismissed for failure to exhaust state remedies. 16 These findings and recommendations are submitted to the United States District Judge 17 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within thirty days after 18 being served with these findings and recommendations, petitioner may file written objections 19 with the court. Such a document should be captioned “Objections to Magistrate Judge’s Findings 20 and Recommendations.” If petitioner files objections, he shall also address whether a certificate 21 of appealability should issue and, if so, why and as to which issues. A certificate of appealability 22 may issue under 28 U.S.C. § 2253 “only if the applicant has made a substantial showing of the 23 denial of a constitutional right.” 28 U.S.C. § 2253(c)(3). Petitioner is advised that failure to file 24 //// 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). 6wOASe 2 EUV EM EOVMOUING INTTING IN RAUL tu POC ere Ye VV VI 1 | objections within the specified time may waive the right to appeal the District Court’s order. 2 | Martinez v. YIst, 951 F.2d 1153 (9th Cir. 1991). 3 | Dated: July 23, 2020 ‘ Foci) Aharon 5 KENDALL J. NE UNITED STATES MAGISTRATE JUDGE 6 7 8 9 Rod1268.ord 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28