(HC) Franklin v. Pfeiffer ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 CHRISTOPHER FRANKLIN, No. 2:23-cv-1039 KJN P 12 Petitioner, 13 v. ORDER AND FINDINGS AND RECOMMENDATIONS 14 C. PFEIFFER, Warden, 15 Respondent. 16 17 Petitioner, a state prisoner proceeding pro se, filed an application for a writ of habeas 18 corpus pursuant to 28 U.S.C. § 2254, together with a request to proceed in forma pauperis 19 pursuant to 28 U.S.C. § 1915. Petitioner submitted a declaration that makes the showing required 20 by § 1915(a). Accordingly, the request to proceed in forma pauperis is granted. 21 28 U.S.C. § 1915(a). 22 The exhaustion of state court remedies is a prerequisite to the granting of a petition for 23 writ of habeas corpus. 28 U.S.C. § 2254(b)(1). If exhaustion is to be waived, it must be waived 24 explicitly by respondent’s counsel. 28 U.S.C. § 2254(b)(3).1 A waiver of exhaustion, thus, may 25 not be implied or inferred. A petitioner satisfies the exhaustion requirement by providing the 26 highest state court with a full and fair opportunity to consider all claims before presenting them to 27 1 A petition may be denied on the merits without exhaustion of state court remedies. 28 U.S.C. 28 § 2254(b)(2). 1 the federal court. Picard v. Connor, 404 U.S. 270, 276 (1971); Middleton v. Cupp, 768 F.2d 2 1083, 1086 (9th Cir. 1985), cert. denied, 478 U.S. 1021 (1986). 3 Petitioner was convicted in May of 2023. After reviewing the petition for habeas corpus, 4 the court finds that petitioner failed to exhaust state court remedies. The claims were not 5 presented to the California Supreme Court. Further, there is no allegation that state court 6 remedies are no longer available to petitioner. Accordingly, the petition should be dismissed 7 without prejudice.2 8 Good cause appearing, IT IS HEREBY ORDERED that: 9 1. Petitioner is granted leave to proceed in forma pauperis; 10 2. The Clerk of the Court shall assign a district judge to this case; and 11 3. The Clerk of the Court is directed to serve a copy of these findings and 12 recommendations together with a copy of the petition filed in the instant case on the Attorney 13 General of the State of California; and 14 IT IS RECOMMENDED that petitioner’s application for a writ of habeas corpus be 15 dismissed for failure to exhaust state remedies. 16 These findings and recommendations are submitted to the United States District Judge 17 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 18 after being served with these findings and recommendations, any party may file written 19 objections with the court and serve a copy on all parties. Such a document should be captioned 20 “Objections to Magistrate Judge’s Findings and Recommendations.” If petitioner files objections, 21 2 Petitioner is cautioned that the habeas corpus statute imposes a one year statute of limitations for filing non-capital habeas corpus petitions in federal court. In most cases, the one year period 22 will start to run on the date on which the state court judgment became final by the conclusion of direct review or the expiration of time for seeking direct review, although the statute of 23 limitations is tolled while a properly filed application for state post-conviction or other collateral review is pending. 28 U.S.C. § 2244(d). Here, petitioner’s May 19, 2023 conviction is not yet 24 final. Petitioner was resentenced on May 19, 2023, and his time to file an appeal has not yet expired. In re Jordan, 4 Cal.4th 116 (Dec. 7, 1992, Cal. S. Ct.). As of June 9, 2023, petitioner 25 had not filed an appeal of the May 19, 2023 conviction. The court may take judicial notice of facts that are “not subject to reasonable dispute because it . . . can be accurately and readily 26 determined from sources whose accuracy cannot reasonably be questioned,” Fed. R. Evid. 201(b), including undisputed information posted on official websites. Daniels-Hall v. National Education 27 Association, 629 F.3d 992, 999 (9th Cir. 2010). It is appropriate to take judicial notice of the docket sheet of a California court. White v. Martel, 601 F.3d 882, 885 (9th Cir. 2010). The 28 address of the official website of the California state courts is www.courts.ca.gov. 1 | he shall also address whether a certificate of appealability should issue and, if so, why and as to 2 || which issues. A certificate of appealability may issue under 28 U.S.C. § 2253 “only if the 3 || applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. 4 | § 2253(c)(3). Any response to the objections shall be served and filed within fourteen days after 5 || service of the objections. The parties are advised that failure to file objections within the 6 || specified time may waive the right to appeal the District Court’s order. Martinez v. YIst, 951 7 | F.2d 1153 (9th Cir. 1991). 8 | Dated: June 29, 2023 Foci) Aharon 10 KENDALL J. NE UNITED STATES MAGISTRATE JUDGE /fran1039.103 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28