(HC) Turner v. People of the State of Calfornia ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ANTHONY DEWAYNE LEE TURNER, No. 2:20-cv-1370 DB P 12 Petitioner, 13 v. ORDER AND FINDINGS AND RECOMMENDATIONS 14 PEOPLE OF THE STATE OF CALIF., 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 has submitted a declaration that makes the showing 20 required by § 1915(a). Accordingly, the request to proceed in forma pauperis will be 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). A petitioner satisfies the exhaustion requirement 24 by providing the highest state court with a full and fair opportunity to consider all claims before 25 presenting them to the federal court. Picard v. Connor, 404 U.S. 270, 276 (1971); Middleton v. 26 Cupp, 768 F.2d 1083, 1086 (9th Cir. 1985). 27 After reviewing the petition for habeas corpus, the court finds that petitioner has failed to 28 exhaust state court remedies. Petitioner concedes that his claims have not been presented to the WOOD 2.40 UV VFAIVE LD MYVVULIICEI & PHM VOrRlLeriay rPaywt evre 1 | California Supreme Court. (See ECF No. | at 6.) Further, there is no allegation that state court 2 | remedies are no longer available to petitioner. Accordingly, the petition should be dismissed 3 | without prejudice.' 4 Good cause appearing, IT IS HEREBY ORDERED that: 5 1. Petitioner’s request to proceed in forma pauperis (ECF No. 5) is granted; 6 2. The Clerk of the Court is directed to serve a copy of these findings and 7 | recommendations together with a copy of the petition filed in the instant case on the Attorney 8 || General of the State of California; and 9 3. The Clerk of the Court shall randomly assign a district judge to this case. 10 Further, IT IS HEREBY RECOMMENDED that petitioner’s application for a writ of 11 | habeas corpus be dismissed without prejudice for failure to exhaust state remedies. 12 These findings and recommendations will be submitted to the United States District Judge 13 | assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within thirty days after 14 | being served with these findings and recommendations, petitioner may file written objections 15 | with the court. The document should be captioned “Objections to Findings and 16 | Recommendations.” Petitioner is advised that failure to file objections within the specified 17 | time may waive the right to appeal the District Court’s order. Martinez v. YIst, 951 F.2d 1153 18 | (9th Cir. 1991). 19 | Dated: August 11, 2020 20 21 ORAH BARNES UNITED STATES MAGISTRATE JUDGE 23 24 DLB:9/DB/prisoner-habeas/turn1370.scrn fr 1 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).