(HC) Forsyth v. Unknown ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MISTY M. FORSYTH, No. 2: 22-cv-1248 KJN P 12 Petitioner, 13 v. ORDER AND FINDINGS AND RECOMMENDATIONS 14 UNKNOWN, 15 Respondent. 16 17 Petitioner, a state prisoner proceeding pro se, filed an application for a writ of habeas 18 corpus pursuant to 28 U.S.C. § 2254. Petitioner paid the filing fee. 19 The petition raises one claim: petitioner is entitled to resentencing pursuant to Senate Bill 20 81. 21 The exhaustion of state court remedies is a prerequisite to the granting of a petition for 22 writ of habeas corpus. 28 U.S.C. § 2254(b)(1). If exhaustion is to be waived, it must be waived 23 explicitly by respondent’s counsel. 28 U.S.C. § 2254(b)(3).1 A waiver of exhaustion, thus, may 24 not be implied or inferred. A petitioner satisfies the exhaustion requirement by providing the 25 highest state court with a full and fair opportunity to consider all claims before presenting them to 26 the federal court. Picard v. Connor, 404 U.S. 270, 276 (1971); Middleton v. Cupp, 768 F.2d 27 1 A petition may be denied on the merits without exhaustion of state court remedies. 28 U.S.C. 28 § 2254(b)(2). 1 |} 1083, 1086 (9th Cir. 1985), cert. denied, 478 U.S. 1021 (1986). 2 After reviewing the petition for habeas corpus, the court finds that petitioner failed to 3 || exhaust state court remedies. The claim raised in the petition was not presented to the California 4 || Supreme Court.” Further, there is no allegation that state court remedies are no longer available 5 || to petitioner. Accordingly, the petition should be dismissed without prejudice.* 6 Accordingly, IT IS HEREBY ORDERED that the Clerk of the Court shall appoint a 7 || district judge to this action; and 8 IT IS HEREBY RECOMMENDED that petitioner’s application for a writ of habeas 9 || corpus be dismissed for failure to exhaust state remedies. 10 These findings and recommendations are submitted to the United States District Judge 11 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days 12 | after being served with these findings and recommendations, petitioner may file written 13 || objections with the court. Such a document should be captioned “Objections to Magistrate 14 || Judge’s Findings and Recommendations.” If petitioner files objections, she shall also address 15 || whether a certificate of appealability should issue and, if so, why and as to which issues. A 16 || certificate of appealability may issue under 28 U.S.C. § 2253 “only if the applicant has made a 17 || substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(3). Petitioner is 18 || advised that failure to file objections within the specified time may waive the right to appeal the 19 | District Court’s order. Martinez v. YIst, 951 F.2d 1153 (9th Cir. 1991). 20 | Dated: July 20, 2022 21 | forl248.dis Herd Ad L Norpteece. 22 KENDALL J. NE — UNITED STATES MAGISTRATE JUDGE 23 || * It appears that petitioner may have intended to file this action in state court. Because petitioner was convicted in Shasta County, it appears that her request for resentencing should first be raised 24 || in the Shasta County Superior Court. 25 | 3 Petitioner is cautioned that the habeas corpus statute imposes a one year statute of limitations 26 || for filing non-capital habeas corpus petitions in federal court. In most cases, the one year period 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).