(HC) Gallegos v. Garza ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 GUSTAVO GALLEGOS, No. 2:20-cv-1817 CKD P 12 Petitioner, 13 v. ORDER AND 14 GARZA, FINDINGS AND RECOMMENDATIONS 15 Respondent. 16 17 Petitioner is a Yuba County Jail prisoner proceeding pro se with a petition for a writ of 18 habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner has paid the filing fee. 19 Petitioner claims he was ordered to serve a sentence in the California Department of 20 Corrections (CDCR) making him eligible to earn sentence credit for such things as working. 21 However, because of Covid-19, plaintiff is serving his sentence in the Yuba County Jail where he 22 is not eligible to earn credit in the same manner as he would in the CDCR. Petitioner asks that he 23 be credited with all of the sentence credit he would have received had he been serving his 24 sentence in the CDCR. 25 The exhaustion of state court remedies is a prerequisite to the granting of a federal petition 26 for writ of habeas corpus. 28 U.S.C. § 2254(b)(1). A petitioner satisfies the exhaustion 27 requirement by providing the highest state court with a full and fair opportunity to consider all 28 claims before presenting them to the federal court. Picard v. Connor, 404 U.S. 270, 276 (1971). MwA 2 OU UV LEONI INES MVE POO eter TOYS eve 1 Petitioner’s habeas petition reveals he has not presented any of his claims in the California 2 | Supreme Court, or any other California court. Accordingly, he is not entitled to habeas corpus 3 | relief here. 4 In accordance with the above, IT IS HEREBY ORDERED that the Clerk of the Court 5 | 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: September 29, 2020 Ci ide f | fe 26 CAROLYN K DELANEY 7 UNITED STATES MAGISTRATE JUDGE 28 | igattisi7.103