(HC) Luisotti v. St. Andre ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 VICTOR JOHN LUISOTTI, JR., No. 2:23-cv-01401 DB P 12 Petitioner, 13 v. ORDER AND FINDINGS AND RECOMMENDATIONS 14 ROBERT ST. ANDRE, 15 Respondents. 16 17 18 Petitioner, a state prisoner proceeding pro se, filed an application for a writ of habeas 19 corpus pursuant to 28 U.S.C. § 2254, challenging the procedure used for a resentencing hearing 20 under Senate Bill 483. (ECF No. 2.) Petitioner has also filed a request to proceed in forma 21 pauperis pursuant to 28 U.S.C. § 1915. Petitioner has submitted a declaration that makes the 22 showing required, and the request is granted. 28 U.S.C. § 1915(a). 23 The exhaustion of state court remedies is a prerequisite to the granting of a petition for 24 writ of habeas corpus. 28 U.S.C. § 2254(b)(1). A petition may be denied on the merits without 25 exhaustion of state court remedies. 28 U.S.C. § 2254(b)(2). If exhaustion is to be waived, though, 26 it must be waived explicitly by respondent’s counsel. 28 U.S.C. § 2254(b)(3). A waiver of 27 exhaustion may not be implied or inferred. A petitioner satisfies the exhaustion requirement by 28 providing the highest state court with a full and fair opportunity to consider all claims before 1 | presenting them to the federal court. Picard v. Connor, 404 U.S. 270, 276 (1971); Middleton v. 2 | Cupp, 768 F.2d 1083, 1086 (9th Cir. 1985), cert. denied, 478 U.S. 1021 (1986). 3 After reviewing the petition for habeas corpus, the court finds petitioner has failed to 4 | exhaust state court remedies. The claims have not been presented to the California Supreme 5 | Court. (See ECF No. 2 at 5.) There is no allegation that state court remedies are no longer 6 || available to petitioner. Accordingly, the petition should be dismissed without prejudice.! 7 Good cause appearing, IT IS HEREBY ORDERED that: 8 1. The Clerk of the Court is directed to assign a district judge to this case; 9 2. Petitioner’s motion to proceed in forma pauperis (ECF No. 6) is granted; and 10 3. The Clerk of the Court is directed to serve a copy of these findings and 11 || recommendations together with a copy of the petition filed in the instant case on the Attorney 12 | General of the State of California. 13 In addition, IT IS HEREBY RECOMMENDED that petitioner’s application for a writ of 14 | habeas corpus be dismissed for failure to exhaust state remedies. 15 These findings and recommendations will be submitted to the United States District Judge 16 | assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(). Within fourteen days 17 | after being served with these findings and recommendations, petitioner may file written 18 | objections with the court. The document should be captioned “Objections to Findings and 19 | Recommendations.” Failure to file objections within the specified time may waive the right to 20 || appeal the District Court’s order. Martinez v. YIst, 951 F.2d 1153 (9th Cir. 1991). 21 | Dated: October 16, 2023 22 23 24 an 3 ORD BARNES UNITED STATES MAGISTRATE JUDGE 25 ft Petitioner is cautioned that the habeas corpus statute imposes a one-year statute of limitations 26 | for filing non-capital habeas corpus petitions in federal court. In most cases, the one-year period will start to run on the date on which the state court judgment became final by the conclusion of 27 || direct review or the expiration of time for seeking direct review, although the statute of limitations is tolled while a properly filed application for state post-conviction or other collateral 28 || review is pending. 28 U.S.C. § 2244(d). 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28