(HC) Campos v. The People ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ESTEBAN CAMPOS, No. 2:23-cv-1308 CKD P 12 Petitioner, 13 v. ORDER AND 14 THE PEOPLE, FINDINGS AND RECOMMENDATIONS 15 Respondent. 16 17 Petitioner, a state prisoner proceeding pro se, has filed an amended application for a writ 18 of habeas corpus pursuant to 28 U.S.C. § 2254. The exhaustion of state court remedies is a 19 prerequisite to the granting of a petition for writ of habeas corpus. 28 U.S.C. § 2254(b)(1). A 20 petitioner satisfies the exhaustion requirement by providing the highest state court with a full and 21 fair opportunity to consider all claims before presenting them to the federal court. Picard v. 22 Connor, 404 U.S. 270, 276 (1971). 23 The court has reviewed the amended petition, and it does not appear that any of the claims 24 have been presented to the California Supreme Court. Further, there is no allegation that state 25 court remedies are no longer available to petitioner. Accordingly, the amended petition should be 26 dismissed without prejudice as the claims have not been exhausted in state court.1 27 1 Petitioner is cautioned that the habeas corpus statute imposes a one-year statute of limitations 28 for filing non-capital habeas corpus petitions in federal court. In most cases, the one-year period ] Good cause appearing, IT IS HEREBY ORDERED that: 2 1. The Clerk of the Court assign a district court judge to this case; and 3 2. The Clerk of the Court serve a copy of these findings and recommendations together 4 || with a copy of the amended petition for writ of habeas corpus filed in the instant case on the 5 || Attorney General of the State of California. 6 IT IS HEREBY RECOMMENDED that petitioner’s application for a writ of habeas 7 || corpus be dismissed for failure to exhaust state remedies. 8 These findings and recommendations are submitted to the United States District Judge 9 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days 10 || after being served with these findings and recommendations, petitioner may file written 11 || objections with the court. Such a document should be captioned “Objections to Magistrate 12 || Judge’s Findings and Recommendations.” In objections, petitioner may address whether a 13 || certificate of appealability should issue in the event he files an appeal of the judgment in this 14 || case. See Rule 11, Federal Rules Governing Section 2254 Cases (the district court must issue or 15 || deny a certificate of appealability when it enters a final order adverse to the applicant). Where, as 16 || here, a habeas petition is dismissed on procedural grounds, a certificate of appealability “should 17 || issue if the prisoner can show: (1) ‘that jurists of reason would find it debatable whether the 18 || district court was correct in its procedural ruling;’ and (2) ‘that jurists of reason would find it 19 || debatable whether the petition states a valid claim of the denial of a constitutional right.’” Morris 20 | v. Woodford, 229 F.3d 775, 780 (9th Cir. 2000) (quoting Slack v. McDaniel, 529 U.S. 473, 484 21 | (2000)). Petitioner is advised that failure to file objections within the specified time may waive 22 | the nght to appeal the District Court’s order. Martinez v. YIst, 951 F.2d 1153 (9th Cir. 1991). 23 | Dated: September 21, 2023 / ae / a ly. ae 24 CAROLYN DELANEY. 25 camp! 308.103 UNITED STATES MAGISTRATE JUDGE 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).