(HC) Brannigan v. Lynch ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JASON R. BRANNIGAN, No. 2:23-cv-0541 CKD P 12 Petitioner, 13 v. ORDER AND 14 JEFF LYNCH, FINDINGS AND RECOMMENDATIONS 15 Respondent. 16 17 Petitioner is a state prisoner proceeding pro se with a petition for a writ of habeas corpus 18 pursuant to 28 U.S.C. § 2254. On August 18, 2023, the court dismissed petitioner’s original 19 petition with leave to amend. Petitioner has now filed an amended petition. 20 The exhaustion of state court remedies is a prerequisite to the granting of a petition for 21 writ of habeas corpus. 28 U.S.C. § 2254(b)(1). A petitioner satisfies the exhaustion requirement 22 by providing the highest state court with a full and fair opportunity to consider all claims before 23 presenting them to the federal court. Picard v. Connor, 404 U.S. 270, 276 (1971); Middleton v. 24 Cupp, 768 F.2d 1083, 1086 (9th Cir. 1985), cert. denied, 478 U.S. 1021 (1986). 25 After reviewing the record in this action, the court finds that petitioner has failed to 26 exhaust state court remedies with respect to the claim presented in his amended petition as he has 27 ///// 28 ///// 1 not presented it to the California Supreme Court. Therefore, the court will recommend that the 2 amended petition be dismissed and this case be closed.1 3 In accordance with the above, IT IS HEREBY ORDERED that the Clerk of the Court 4 assign a district court judge to this case; and 5 IT IS HEREBY RECOMMENDED that: 6 1. Petitioner’s amended petition for a writ of habeas corpus be dismissed for failure to 7 exhaust state court remedies; and 8 2. This case be closed. 9 These findings and recommendations are submitted to the United States District Judge 10 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 11 after being served with these findings and recommendations, petitioner may file written 12 objections with the court. Such a document should be captioned “Objections to Magistrate 13 Judge’s Findings and Recommendations.” In his objections petitioner may address whether a 14 certificate of appealability should issue in the event he files an appeal of the judgment in this 15 case. See Rule 11, Federal Rules Governing Section 2254 Cases (the district court must issue or 16 deny a certificate of appealability when it enters a final order adverse to the applicant). Where, as 17 here, a habeas petition is dismissed on procedural grounds, a certificate of appealability “should 18 issue if the prisoner can show: (1) ‘that jurists of reason would find it debatable whether the 19 district court was correct in its procedural ruling;’ and (2) ‘that jurists of reason would find it 20 debatable whether the petition states a valid claim of the denial of a constitutional right.’” Morris 21 v. Woodford, 229 F.3d 775, 780 (9th Cir. 2000) (quoting Slack v. McDaniel, 529 U.S. 473, 484 22 ///// 23 ///// 24 ///// 25 1 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 26 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 |} (2000)). Petitioner is advised that failure to file objections within the specified time may waive 2 | the right to appeal the District Court’s order. Martinez v. YIst, 951 F.2d 1153 (9th Cir. 1991). 3 || Dated: September 6, 2023 Card Kt | (£4 (g— 4 CAROLYN K.DELANEY 5 UNITED STATES MAGISTRATE JUDGE 6 7 8] 1 9 bran0541.103 10 1] 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28