(HC) Kern v. Sacramento County District Attorney Office ( 2024 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JAMES CURTIS KERN, Case No. 2:24-cv-1630-TLN-JDP (P) 12 Petitioner, 13 v. ORDER; FINDINGS AND RECOMMENDATIONS 14 SACRAMENTO COUNTY DISTRICT ATTORNEY OFFICE, 15 Respondent. 16 17 18 Petitioner, an inmate at Pelican Bay State Prison, brings this action under section 2254. 19 ECF No. 1. He raises claims related to a 2024 conviction, but acknowledges that state appellate 20 proceedings remain pending. Id. at 2. Thus, his claims are unexhausted and I recommend that 21 the petition be dismissed on that basis. If his claims have, in fact, been presented to the California 22 Supreme Court, petitioner may state as much in his objections to these recommendations. I also 23 necessarily recommend denial of petitioner’s motion for injunctive relief. ECF No. 8. Finally, I 24 will grant his application to proceed in forma pauperis. ECF No. 9. 25 The petition is before me for preliminary review under Rule 4 of the Rules Governing 26 Section 2254 Cases. Under Rule 4, the judge assigned to the habeas proceeding must examine 27 the habeas petition and order a response to the petition unless it “plainly appears” that the 28 1 petitioner is not entitled to relief. See Valdez v. Montgomery, 918 F.3d 687, 693 (9th Cir. 2019); 2 Boyd v. Thompson, 147 F.3d 1124, 1127 (9th Cir. 1998). 3 Here, petitioner acknowledges that the claims he presents remain pending with the state 4 appellate court. ECF No. 1 at 2. The petition also explicitly indicates that the claims have not 5 been presented to the California Supreme Court. Id. at 3. Federal habeas claims must be 6 exhausted by presentation to the highest state court. See 28 U.S.C. § 2254(b),(c); McNeeley v. 7 Arave, 842 F.2d 230, 231 (9th Cir. 1988). Thus, petitioner’s claims should be dismissed. He may 8 bring a new action when his claims have been properly exhausted in state court. 9 As the claims in the petition are unexhausted and, thus, not ripe for consideration, 10 petitioner’s request for injunctive relief, ECF No. 8, necessarily fails. 11 Accordingly, it is hereby ORDERED that petitioner’s application to proceed in forma 12 pauperis, ECF No. 9, is GRANTED. 13 Further, it is RECOMMENDED that: 14 1. The petition, ECF No. 1, be DISMISSED as unexhausted; 15 2. The motion for injunctive relief, ECF No. 8, be DENIED; and 16 3. The Clerk of Court be directed to close this action. 17 These findings and recommendations are submitted to the United States District Judge 18 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 19 after being served with these findings and recommendations, any party may file written 20 objections with the court and serve a copy on all parties. Such a document should be captioned 21 “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 22 objections shall be served and filed within fourteen days after service of the objections. The 23 parties are advised that failure to file objections within the specified time may waive the right to 24 appeal the District Court’s order. Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez 25 v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 26 27 28 1 > IT IS SO ORDERED. 3 ( | { Wine Dated: _ November 13, 2024 Q_—_—. 4 JEREMY D. PETERSON 5 UNITED STATES MAGISTRATE JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28