(HC) Brewer v. Macomber

• Court: District Court, E.D. California
• Decided: August 28, 2024
• Docket: 2:24-cv-00587
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 CHARLES BREWER, Case No. 2:24-cv-00587-KJM-JDP (HC) 12 Petitioner, ORDER 13 v. DENYING MOTIONS TO REPLACE MAGISTRATE JUDGE AND FOR 14 JEFF MACOMBER, RECONSIDERATION 15 Respondent. ECF Nos. 5 & 6 16 17 Petitioner, a state prisoner, brought this action under section 2254, alleging that his rights 18 were violated when the state courts rejected his habeas petition challenging a prison disciplinary 19 violation. ECF No. 1 at 4. I screened his petition, which not to contain a cognizable federal 20 habeas claim and to be unexhausted. ECF No. 4. I did not recommend that the action be 21 dismissed, however, and instead offered petitioner a chance to amend and to explain why his 22 claims were both exhausted and viable. Id. Rather than amending his complaint, however, 23 petitioner filed two motions. ECF Nos. 5 & 6. Both, for reasons stated below, are denied. I will 24 allow petitioner an additional thirty days to file his amended petition. 25 Motion to Replace Magistrate Judge and to Shorten Time 26 The first motion argues that I should be replaced with a different judge because, by failing 27 to expedite these proceedings and direct service of the petition on respondent, I have jeopardized 28 1 petitioner’s liberty interest in early release and will, potentially, cause him to serve the lengthened 2 sentence that this action hopes to avoid. ECF No. 5 at 1. I understand petitioner’s predicament, 3 but I am bound by law to screen his petition and to serve it on respondent only if it appears that he 4 may be entitled to relief. See 28 U.S.C. § 2254, Rule 4 (“If it plainly appears from the petition 5 and any attached exhibits that the petitioner is not entitled to relief in the district court, the judge 6 must dismiss the petition and direct the clerk to notify the petitioner.”). As stated in my screening 7 order, relief appears impossible at this juncture. Thus, I find that petitioner has not offered 8 justification for my removal or replacement, or for deviation from the standard procedures 9 governing federal habeas petitions. 10 Motion for Reconsideration 11 Petitioner’s second motion seeks reconsideration of my screening order and vaguely 12 argues that my legal reasoning was motivated by “politics/personal nonsense.” ECF No. 6 at 1. 13 Such vague assertions do not justify reconsideration. He also contends that he is not required to 14 exhaust his claims because the state courts violated his federal due process rights. Id. at 2. He 15 cites the Court of Appeals’s decision in Coe v. Thurman, 922 F.2d 528 (9th Cir. 1990) for the 16 proposition that he is not required to exhaust where the state remedy is ineffective. His petition 17 fails to support this argument, however. To exhaust, a petitioner is required to submit his claims 18 to the state’s highest court, in this case the California Supreme Court. See Gatlin v. Madding, 189 19 F.3d 882, 888 (9th Cir. 1999) (“To exhaust a habeas claim properly, a petitioner must present his 20 claim to the state supreme court even if that court's review is discretionary.”). And there appears 21 to be no impediment to doing so in this case. See Carey v. Saffold, 536 U.S. 214, 231 (2002) 22 (“Indeed, the California Supreme Court may grant relief even if the prisoner has not filed any 23 petition in the lower courts.”). Thus, petitioner has not shown that state remedies are ineffective. 24 Accordingly, it is hereby ORDERED that: 25 1. Petitioner’s motions to replace magistrate judge, ECF No. 5, and for reconsideration, 26 ECF No. 6 are DENIED. 27 2. Within thirty days of the date of this order’s entry, petitioner may file an amended 28 1 | habeas petition consistent with my screening order, ECF No. 4. If he fails to do so, I will 2 || recommend this action be dismissed. 3 3. The Clerk of Court is directed to send petitioner a section 2254 habeas form with this 4 | order. 5 6 IT IS SO ORDERED. 7 ( — Dated: _ August 28, 2024 Q————. 8 awe D. PE i ERSON 9 UNITED STATES MAGISTRATE JUDGE

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