(HC) Newman v. CDCR ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JIMMY L. NEWMAN, III, Case No. 1:20-cv-01118-JDP 12 Petitioner, FINDINGS AND RECOMMENDATIONS TO DISMISS PETITION FOR FAILURE TO 13 v. EXHAUST CLAIM 14 CDCR, OBJECTIONS DUE IN THIRTY DAYS 15 Respondent. ECF No. 1 16 ORDER DIRECTING CLERK OF COURT TO ASSIGN CASE TO DISTRICT JUDGE 17 18 Petitioner Jimmy L. Newman, III, a state prisoner without counsel, seeks a writ of habeas 19 corpus under 28 U.S.C. § 2254. ECF No. 1. This matter is before us for preliminary review 20 under Rule 4 of the Rules Governing Section 2254 Cases. Under Rule 4, a district court must 21 dismiss a habeas petition if it “plainly appears” that the petitioner is not entitled to relief. See 22 Valdez v. Montgomery, 918 F.3d 687, 693 (9th Cir. 2019); Boyd v. Thompson, 147 F.3d 1124, 23 1127 (9th Cir. 1998). Courts have “an active role in summarily disposing of facially defective 24 habeas petitions” under Rule 4. Ross v. Williams, 896 F.3d 958, 968 (9th Cir. 2018) (citation 25 omitted). 26 27 28 1 Discussion 2 A petitioner in state custody proceeding with a petition for a writ of habeas corpus must 3 exhaust state judicial remedies. See 28 U.S.C. § 2254(b)(1). The exhaustion doctrine is based on 4 comity and gives the state court the initial opportunity to correct its alleged constitutional 5 deprivations. See Coleman v. Thompson, 501 U.S. 722, 731 (1991); Rose v. Lundy, 455 U.S. 509, 6 518 (1982). A petitioner can satisfy the exhaustion requirement by providing the highest state 7 court with a full and fair opportunity to consider each claim before presenting it to the federal 8 court. See O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999); Duncan v. Henry, 513 U.S. 364, 9 365 (1995). 10 Here, petitioner presents one claim for relief: that his prison is wrongfully withholding his 11 earned custody credits, causing a delay in his release. ECF No. 1 at 3. Petitioner states that he 12 has not sought any state-level review of his claim. Id. at 5-6. Accordingly, it appears that 13 petitioner has failed to exhaust his claim, and we recommend that his petition be summarily 14 dismissed. If petitioner has presented his claim to the appropriate state courts, he should provide 15 proof of these filings to the court in his objections to these findings and recommendations. 16 Certificate of Appealability 17 A petitioner seeking a writ of habeas corpus has no absolute right to appeal a district 18 court’s denial of a petition; he may appeal only in limited circumstances. See 28 U.S.C. § 2253; 19 Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003). Rule 11 Governing Section 2254 Cases 20 requires a District Court to issue or deny a certificate of appealability when entering a final order 21 adverse to a petitioner. See also Ninth Circuit Rule 22-1(a); United States v. Asrar, 116 F.3d 22 1268, 1270 (9th Cir. 1997). Where, as here, the court denies habeas relief on procedural grounds 23 without reaching the underlying constitutional claims, the court should issue a certificate of 24 appealability “if jurists of reason would find it debatable whether the petition states a valid claim 25 of the denial of a constitutional right and that jurists of reason would find it debatable whether the 26 district court was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). 27 “Where a plain procedural bar is present and the district court is correct to invoke it to dispose of 28 the case, a reasonable jurist could not conclude either that the district court erred in dismissing the 4.EU UV VELLOUINY VET Sr POR Oe Le TAY VM VI 1 | petition or that the petitioner should be allowed to proceed further.” Jd. Here, reasonable jurists 2 | would not find our conclusion debatable or conclude that petitioner should proceed further. Thus, 3 | the court should decline to issue a certificate of appealability. 4 | Findings and Recommendations 5 We recommend that the petition be dismissed, ECF No. 1, and that the court decline to 6 | issue a certificate of appealability. We submit the findings and recommendations to the U.S. 7 | District Court judge who will be assigned to the case under 28 U.S.C. § 636(b)(1)(B) and Rule 8 | 304 of the Local Rules of Practice for the United States District Court, Eastern District of 9 | California. Within thirty days of the service of the findings and recommendations, petitioner may 10 | file written objections to the findings and recommendations with the court and serve a copy on all 11 || parties. That document must be captioned “Objections to Magistrate Judge’s Findings and 12 | Recommendations.” The assigned district judge will then review the findings and 13 || recommendations under 28 U.S.C. § 636(b)(1)(C). 14 | Order 15 The clerk of court is directed to assign this case to a district judge for the purposes of 16 || reviewing these findings and recommendations. 17 18 IT IS SO ORDERED. 19 ( Caan Dated: _ August 21, 2020 20 UNIT#D STATES MAGISTRATE JUDGE 21 22 | No. 206. 23 24 25 26 27 28