(HC) Taylor v. District Attorney Office ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ROBERT TAYLOR, Case No. 2:23-cv-00460-JDP (HC) 12 Petitioner, ORDER 13 v. 14 DISTRICT ATTORNEY OFFICE, 15 Respondent. 16 17 Petitioner, a detainee in the Sacramento County Jail proceeding without counsel, seeks a 18 writ of habeas corpus under 28 U.S.C. § 2254. After reviewing the petition, I find that it fails to 19 state a cognizable habeas claim. I will give him leave to amend. I will also grant his petition to 20 proceed in forma pauperis. ECF No. 11. 21 The petition is before me for preliminary review under Rule 4 of the Rules Governing 22 Section 2254 Cases. Under Rule 4, the judge assigned to the habeas proceeding must examine 23 the habeas petition and order a response to the petition unless it “plainly appears” that the 24 petitioner is not entitled to relief. See Valdez v. Montgomery, 918 F.3d 687, 693 (9th Cir. 2019); 25 Boyd v. Thompson, 147 F.3d 1124, 1127 (9th Cir. 1998). 26 It appears that petitioner’s state conviction is not yet finalized. He states that he was 27 “rearrested” in May 2022 and that the district attorney has failed to provide him with a timely 28 preliminary hearing. ECF No. 10 at 3. There is no indication that petitioner has appealed or filed 1 | astate habeas petition challenging his conviction—if indeed he has been convicted. Thus, it 2 || appears that the claims are not ripe for federal habeas consideration. 3 I will give petitioner an opportunity to file an amended petition that explains the status of 4 | his conviction and whether he has exhausted any claims with the California Supreme Court. 5 It is ORDERED that: 6 1. Petitioner’s application to proceed in forma pauperis, ECF No. 11, is GRANTED. 7 2. The Clerk of Court is directed to send petitioner a federal § 2254 habeas form. 8 3. Within thirty days of this order’s entry, petitioner may file an amended habeas 9 | petition. If he does not, I will recommend this action be dismissed. 10 Wl IT IS SO ORDERED. 12 ( ie — Dated: _ October 12, 2023 Q_—_—. 13 JEREMY D. PETERSON 4 UNITED STATES MAGISTRATE JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28