(HC) Zunino v. Sutter County Superior Court ( 2022 )

1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 FOR THE EASTERN DISTRICT OF CALIFORNIA 8 9 DWIGHT ZUNINO, Case No. 2:22-cv-00140-EFB P 10 Petitioner, ORDER GRANTING PETITIONER’S APPLICATION TO PROCEED IN FORMA 11 v. PAUPERIS AND DIRECTING THE CLERK OF COURT TO ASSIGN A DISTRICT 12 SUTTER COUNTY SUPERIOR COURT, JUDGE TO RULE ON THESE FINDINGS AND RECOMMENDATIONS 13 Respondent. ECF No. 6 14 FINDINGS AND RECOMMENDATIONS 15 THAT THIS PETITION BE DISMISSED AS UNEXHAUSTED 16 ECF No. 1 17 18 Petitioner, a state prisoner proceeding without counsel, has filed a petition for a writ of 19 habeas corpus under 28 U.S.C. § 2254, and a request to proceed in forma pauperis. He was 20 convicted in 2020 and sentenced in October of 2021. ECF No. 1 at 2. As discussed below, the 21 petition is unexhausted and, accordingly, it must be dismissed. 22 The amended petition is before the court for preliminary review under Rule 4 of the Rules 23 Governing Section 2254 Cases. Under Rule 4, the judge assigned to the habeas proceeding must 24 examine the habeas petition and order a response to the petition unless it “plainly appears” that 25 the petitioner is not entitled to relief. See Valdez v. Montgomery, 918 F.3d 687, 693 (9th Cir. 26 2019); Boyd v. Thompson, 147 F.3d 1124, 1127 (9th Cir. 1998). 27 Petitioner argues that the state court illegally imposed a sentencing enhancement without 28 the requisite finding of fact by a jury. ECF No. 1 at 3. He also claims that the state court illegally 1 | sentenced him to a term beyond the statutory maximum. /d. He acknowledges, however, that the 2 | California Supreme Court has not yet ruled on these claims. /d. at 6. To exhaust federal habeas 3 | claims, a petitioner must present them to the state’s highest court and receive a ruling therefrom. 4 | See Baldwin v. Reese, 541 U.S. 27, 29 (2004). Given that the petition contains only unexhausted 5 | claims, the court recommends that it be dismissed. See Raspberry v. Garcia, 448 F.3d 1150, 6 | 1154 (9th Cir. 2006). Petitioner may re-file his petition once he exhausts his claims in state court. 7 It is ORDERED that: 8 1. Petitioner’s application to proceed in forma pauperis, ECF No. 6, is granted. 9 2. The Clerk of Court shall assign a district judge to rule on these findings and 10 | recommendations. 11 It is RECOMMENDED that petitioner’s petition, ECF No. 1, be dismissed without 12 | prejudice for failure to exhaust. 13 These findings and recommendations are submitted to the U.S. District Court Judge 14 | presiding over this case under 28 U.S.C. § 636(b)(1)(B) and Rule 304 of the Local Rules of 15 | Practice for the United States District Court, Eastern District of California. Within fourteen days 16 | ofservice of the findings and recommendations, petitioner may file written objections to the 17 | findings and recommendations with the court. That document must be captioned “Objections to 18 | Magistrate Judge’s Findings and Recommendations.” The District Judge will then review the 19 | findings and recommendations under 28 U.S.C. § 636(b)(1)(C). 20 | Dated: March 1, 2022. 22 EDMUND F. BRENNAN 33 UNITED STATES MAGISTRATE JUDGE 24 25 26 27 28