(HC) Chappell v. Kiebler ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 BLAKE CHAPPELL, No. 2:22-cv-0259 WBS AC P 12 Petitioner, 13 v. ORDER 14 B. KIEBLER, Warden, 15 Respondent. 16 17 Petitioner, a state prisoner proceeding pro se, has filed an application for a writ of habeas 18 corpus pursuant to 28 U.S.C. § 2254. (Docket No. 1.) The matter was referred to a United States 19 Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 20 On May 2, 2022, the Magistrate Judge issued findings and recommendations herein which 21 were served on petitioner and which contained notice to petitioner that any objections to the 22 findings and recommendations were to be filed within fourteen days. (Docket No. 8.) Petitioner 23 has filed objections to the findings and recommendations. (Docket No. 9.) 24 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304, this 25 court has conducted a de novo review of this case. Having carefully reviewed the entire file, the 26 court finds the findings and recommendations to be supported by the record and by proper 27 analysis. The court notes that petitioner, in his objections, has filed a decision from the 28 Sacramento Superior Court denying his state habeas petition. However, proper exhaustion 1 | requires presenting claims to the state’s highest court either on direct or collateral review. See 2 | Picard v. Connor, 404 U.S. 270, 276 (1971); Middleton v. Cupp, 768 F.2d 1083, 1086 (9th Cir. 3 | 1985). Further, state court exhaustion has to be completed before a federal habeas petition is 4 | filed. Picard, 404 U.S. at 275-76; Poyson v. Ryan, 879 F.3d 875, 894 (9th Cir. 2018). Here, there 5 | is no indication that plaintiff has presented his claims to the state’s highest court. Nor did he 6 | complete state court exhaustion before filing his federal habeas petition. 7 Accordingly, IT IS HEREBY ORDERED that: 8 1. The findings and recommendations filed May 2, 2022 (ECF No. 8), are ADOPTED in 9 | full; 10 2. Petitioner’s motion to proceed in forma pauperis (ECF No. 5) is DENIED as moot; 11 3. The petition is DISMISSED without prejudice, and 12 4. The court DECLINES to issue the certificate of appealability referenced in 28 U.S.C. § 13 | 2253. 14 | Dated: July 14, 2022 A bloc _ Ae. beE— 15 WILLIAM B. SHUBB UNITED STATES DISTRICT JUDGE 16 17 18 19 20 21 22 || chap0259.804hc 23 24 25 26 27 28