(HC)Anaya v. Cates ( 2021 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 JULIO A. ANAYA, Case No. 1:21-cv-00737-SAB-HC 11 Petitioner, FINDINGS AND RECOMMENDATION TO DISMISS PETITION FOR WRIT OF 12 v. HABEAS CORPUS 13 B. CATES, ORDER DIRECTING CLERK OF COURT TO RANDOMLY ASSIGN DISTRICT 14 Respondent. JUDGE 15 16 Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus 17 pursuant to 28 U.S.C. § 2254. 18 I. 19 BACKGROUND 20 On May 7, 2021, Petitioner filed the instant petition for writ of habeas corpus. (ECF No. 21 1). Although it is unclear, Petitioner, who is currently housed at the California Correctional 22 Institution (“CCI”) in Tehachapi, appears to challenge his 2020 Ventura County Superior Court 23 convictions and sentence on various due process grounds in addition to challenging CCI’s 24 disapproval of Petitioner’s requests for early release and sentence recall. (ECF No. 1 at 3–4).1 25 On May 14, 2021, the Court ordered Petitioner to show cause why the petition should not 26 be dismissed for failure to exhaust state judicial remedies. (ECF No. 4). To date, no response to 27 the Court’s order to show cause has been filed, and the time for doing so has passed. 1 II. 2 DISCUSSION 3 Rule 4 of the Rules Governing Section 2254 Cases requires preliminary review of a 4 habeas petition and allows a district court to dismiss a petition before the respondent is ordered 5 to file a response, if it “plainly appears from the petition and any attached exhibits that the 6 petitioner is not entitled to relief in the district court.” 7 It appears that Petitioner failed to exhaust his claims raised in the instant petition. A 8 petitioner in state custody who is proceeding with a petition for writ of habeas corpus must 9 exhaust state judicial remedies. 28 U.S.C. § 2254(b)(1). The exhaustion doctrine is based on 10 comity to the state court and gives the state court the initial opportunity to correct the state’s 11 alleged constitutional deprivations. Coleman v. Thompson, 501 U.S. 722, 731 (1991); Rose v. 12 Lundy, 455 U.S. 509, 518 (1982). A petitioner can satisfy the exhaustion requirement by 13 providing the highest state court with a full and fair opportunity to consider each claim before 14 presenting it to the federal court. O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999); Duncan v. 15 Henry, 513 U.S. 364, 365 (1995); Picard v. Connor, 404 U.S. 270, 276 (1971). 16 The petition states that Petitioner did not file a direct appeal, did not seek the highest 17 level of administrative review available, and did not file any other petitions. (ECF No. 1 at 5). 18 Petitioner has failed to respond to the order to show cause. As it appears Petitioner has not 19 sought relief in the California Supreme Court, the Court cannot proceed to the merits of his 20 claims. 28 U.S.C. § 2254(b)(1). Accordingly, the Court finds that Petitioner’s claims are 21 unexhausted and should be dismissed. 22 III. 23 RECOMMENDATION & ORDER 24 Based on the foregoing, the undersigned HEREBY RECOMMENDS that the petition for 25 writ of habeas corpus be DISMISSED without prejudice for failure to exhaust state judicial 26 remedies. 27 Further, the Clerk of Court is DIRECTED to randomly assign this action to a District 1 This Findings and Recommendation is submitted to the United States District Court 2 | Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 3 | of the Local Rules of Practice for the United States District Court, Eastern District of California. 4 | Within THIRTY (30) days after service of the Findings and Recommendation, Petitioner may 5 | file written objections with the Court and serve a copy on all parties. Such a document should be 6 | captioned “Objections to Magistrate Judge’s Findings and Recommendation.” The assigned 7 | District Judge will then review the Magistrate Judge’s ruling pursuant to 28 U.S.C. 8 | § 636(b)(1)(C). Petitioner is advised that failure to file objections within the specified time may 9 | result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) 10 | (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 11 0 IT IS SO ORDERED. FA. ee 13 | Dated: _ July 27, 2021 14 UNITED STATES MAGISTRATE JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28