(HC) Koppe v. Warden ( 2024 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 NICHOLAS TYLER KOPPE, No. 2:24-cv-00445 KJN P 12 Petitioner, 13 v. ORDER AND FINDINGS AND RECOMMENDATIONS 14 WARDEN, 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 together with a request to proceed in forma pauperis 19 pursuant to 28 U.S.C. § 1915. Petitioner submitted a declaration that makes the showing required 20 by § 1915(a). Accordingly, the request to proceed in forma pauperis will be granted. 21 28 U.S.C. § 1915(a). 22 The exhaustion of state court remedies is a prerequisite to the granting of a petition for 23 writ of habeas corpus. 28 U.S.C. § 2254(b)(1). If exhaustion is to be waived, it must be waived 24 explicitly by respondent’s counsel. 28 U.S.C. § 2254(b)(3).1 A waiver of exhaustion, thus, may 25 not be implied or inferred. A petitioner satisfies the exhaustion requirement by providing the 26 highest state court with a full and fair opportunity to consider all claims before presenting them to 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 | the federal court. Picard v. Connor, 404 U.S. 270, 276 (1971); Middleton v. Cupp, 768 F.2d 2 | 1083, 1086 (9th Cir. 1985), cert. denied, 478 U.S. 1021 (1986). 3 After reviewing the petition for habeas corpus, the court finds that petitioner failed to 4 || exhaust state court remedies. The claims were not presented to the California Supreme Court. 5 || Further, there is no allegation that state court remedies are no longer available to petitioner. 6 | Accordingly, the petition should be dismissed without prejudice.” 7 Good cause appearing, IT IS HEREBY ORDERED that: 8 1. Petitioner is granted leave to proceed in forma pauperis (ECF No. 2); 9 2. The Clerk of the Court shall assign a district judge to this action; and 10 IT IS HEREBY RECOMMENDED that petitioner’s application for a writ of 11 || corpus be dismissed for failure to exhaust state remedies. 12 These findings and recommendations are submitted to the United States District Judge 13 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1).. Within fourteen days 14 | after being served with these findings and recommendations, petitioner may file written 15 || objections with the court. Such a document should be captioned “Objections to Magistrate 16 | Judge’s Findings and Recommendations.” If petitioner files objections, he shall also address 17 || whether a certificate of appealability should issue and, if so, why and as to which issues. A 18 | certificate of appealability may issue under 28 U.S.C. § 2253 “only if the applicant has made a 19 | substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(3). Petitioner is 20 | advised that failure to file objections within the specified time may waive the right to appeal the 21 | District Court’s order. Martinez v. YIst, 951 F.2d 1153 (9th Cir. 1991). 22 || Dated: February 15, 2024 / a8 } Hf | Ld a — 23 CAROLYN DELANEY. 34 | Soppetto.tos UNITED STATES MAGISTRATE JUDGE 25 | 2 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).