(HC) Martin v. Jones ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MILES MARTIN, No. 2:20-cv-1845 CKD P 12 Petitioner, 13 v. ORDER AND 14 SCOTT JONES, FINDINGS AND RECOMMENDATIONS 15 Respondent. 16 17 Petitioner is a Sacramento County Jail prisoner proceeding pro se with a petition for a writ 18 of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner has filed a motion to proceed in forma 19 pauperis. Examination of the in forma pauperis application reveals that petitioner is unable to 20 afford the costs of suit. Accordingly, the application to proceed in forma pauperis will be 21 granted. See 28 U.S.C. § 1915(a). 22 Petitioner challenges the calculation of his release date. 23 The exhaustion of state court remedies is a prerequisite to the granting of a federal petition 24 for writ of habeas corpus. 28 U.S.C. § 2254(b)(1). A petitioner satisfies the exhaustion 25 requirement by providing the highest state court with a full and fair opportunity to consider all 26 claims before presenting them to the federal court. Picard v. Connor, 404 U.S. 270, 276 (1971). 27 Petitioner’s habeas petition reveals he has not presented any of his claims in the California 28 ///// wOAIS 2 SUV VRS NEE MIU I Ne AY ee 1 | Supreme Court, or any other California court. Accordingly, he is not entitled to habeas corpus 2 | relief here. 3 In accordance with the above, IT IS HEREBY ORDERED that: 4 1. Petitioner’s motion to proceed in forma pauperis (ECF No. 5) is granted; and 5 2. The Clerk of the Court assign a district court judge to this case. 6 IT IS HEREBY RECOMMENDED that: 7 1. Petitioner’s petition for a writ of habeas corpus be dismissed for failure to exhaust state 8 || court remedies; and 9 2. This case be closed. 10 These findings and recommendations are submitted to the United States District Judge 11 | assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(). Within fourteen days 12 | after being served with these findings and recommendations, petitioner may file written 13 | objections with the court. Such a document should be captioned “Objections to Magistrate 14 | Judge’s Findings and Recommendations.” In his objections, petitioner may address whether a 15 | certificate of appealability should issue in the event he files an appeal of the judgment in this 16 | case. See Rule 11, Federal Rules Governing Section 2254 Cases (the district court must issue or 17 | deny certificate of appealability when it enters a final order adverse to the applicant). Where, as 18 | here, a habeas petition is dismissed on procedural grounds, a certificate of appealability “should 19 | issue if the prisoner can show: (1) ‘that jurists of reason would find it debatable whether the 20 | district court was correct in its procedural ruling;’ and (2) ‘that jurists of reason would find it 21 | debatable whether the petition states a valid claim of the denial of a constitutional right.’” Morris 22 | v. Woodford, 229 F.3d 775, 780 (9th Cir. 2000) (quoting Slack v. McDaniel, 529 U.S. 473, 484 23 | (2000)). Petitioner is advised that failure to file objections within the specified time may waive 24 | the nght to appeal the District Court’s order. Martinez v. YIst, 951 F.2d 1153 (9th Cir. 1991). 25 | Dated: October 8, 2020 Cardy Kt |X 26 CAROLYN K DELANEY 7 UNITED STATES MAGISTRATE JUDGE 38 V/gall1817.103