(HC) Wade v. Hill ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 CHANCELLOR WADE, Case No. 2:22-cv-00556-WBS-JDP (HC) 12 Petitioner, ORDER GRANTING PETITIONER’S APPLICATION TO PROCEED IN FORMA 13 v. PAUPERIS 14 RICK HILL, ECF No. 2 15 Respondent. FINDING THAT THE PETITION IS UNEXHAUSTED AND RECOMMENDING 16 THAT IT BE DISMISSED WITHOUT PREJUDICE 17 ECF No. 1 18 19 Petitioner, proceeding without counsel, seeks a writ of habeas corpus under 28 U.S.C. 20 § 2254. After reviewing the petition, I find that his claims are unexhausted and recommend that it 21 be dismissed. 22 The petition is before me for preliminary review under Rule 4 of the Rules Governing 23 Section 2254 Cases. Under Rule 4, the judge assigned to the habeas proceeding must examine 24 the habeas petition and order a response to the petition unless it “plainly appears” that the 25 petitioner is not entitled to relief. See Valdez v. Montgomery, 918 F.3d 687, 693 (9th Cir. 2019); 26 Boyd v. Thompson, 147 F.3d 1124, 1127 (9th Cir. 1998). 27 Petitioner alleges that his conviction was obtained in violation of his Fourteenth 28 Amendment rights. ECF No. 1 at 2-3. He states, however, that this habeas claim is still pending 1 | before the California Supreme Court. Jd. at 2. Thus, his claim is unexhausted. See Scott v. 2 | Schriro, 567 F.3d 573, 582 (9th Cir. 2009) (“A petitioner satisfies the exhaustion requirement by 3 | fully and fairly presenting each claim to the highest state court.”). Petitioner may re-file his 4 | petition once he has exhausted his claims in state court. 5 Separately, petitioner appears to allege that his rights were violated when the clerk for the 6 | California Supreme Court appointed unwanted counsel for him. ECF No. 1 at 16. This claim 7 | does not directly implicate the propriety of petitioner’s conviction, however. Moreover, given 8 | that his claim in front of the California Supreme Court is still pending, petitioner has not shown 9 | that this appointment prejudiced him. 10 It is ORDERED that petitioner’s application to proceed in forma pauperis, ECF No. 2, is 11 | GRANTED. 12 Further, it is RECOMMENDED that the petition, ECF No. 1, be DISMISSED without 13 || prejudice as unexhausted. 14 These findings and recommendations are submitted to the U.S. District Court Judge 15 | presiding over this case under 28 U.S.C. § 636(b)(1)(B) and Rule 304 of the Local Rules of 16 | Practice for the United States District Court, Eastern District of California. Within fourteen days 17 | of service of the findings and recommendations, petitioner may file written objections to the 18 | findings and recommendations with the court and serve a copy on all parties. That document 19 | must be captioned “Objections to Magistrate Judge’s Findings and Recommendations.” The 20 | District Judge will then review the findings and recommendations under 28 U.S.C. 21 | § 636(b)1)(C). 22 73 IT IS SO ORDERED. 24 ( q Sty — Dated: _ April 25, 2022 □□ 25 JEREMY D. PETERSON 26 UNITED STATES MAGISTRATE JUDGE 27 28