(HC) Drume v. Superior Court of the State of California for the County of Fresno

Opinion

1 2 3 4 5 6 7 10 11 CHARLES DRUME, Case No. 1:22-cv-00296-KES-CDB (HC)

12 Petitioner, ORDER ADOPTING FINDINGS AND RECOMMENDATIONS DISMISSING 13 v. PETITION FOR WRIT OF HABEAS CORPUS WITHOUT PREJUDICE AND DENYING 14 MOTION FOR EXTENSION OF TIME AS SUPERIOR COURT OF THE STATE OF MOOT FRESNO, (Docs. 28, 30, 31) 16

Respondent. 17 18 19 Petitioner Charles Drume (“Petitioner”) is a state prisoner proceeding pro se with a 20 petition for habeas corpus pursuant to 28 U.S.C. § 2254. Doc. 1. Petitioner seeks review of a 21 judgment of conviction in the Superior Court of California for the County of Fresno. Id. On 22 May 12, 2022, the assigned magistrate judge conducted a preliminary screening of the petition 23 and determined that the petition failed to name the proper respondent, failed to present any 24 cognizable grounds for relief, and failed to demonstrate exhaustion of state remedies. Doc. 9. 25 Subsequently, the assigned magistrate judge granted Petitioner five requested extensions 26 of time to file a first amended petition. Docs. 11, 13, 20, 23, 26. On May 26, 2023, Petitioner 27 filed a sixth motion for extension of time. Doc. 28. On June 1, 2023, the assigned magistrate 1 Petitioner’s failure to show exhaustion of state remedies. Doc. 29. Petitioner did not file a 2 response to the order to show cause. 3 On June 29, 2023, the assigned magistrate judge issued findings and recommendations 4 that the petition for writ of habeas corpus be dismissed without prejudice and that Petitioner’s 5 sixth motion for an extension of time be denied as moot. Doc. 30. The assigned magistrate judge 6 determined that, although Petitioner had been on notice since the Court’s May 12, 2022, 7 screening order that his petition did not establish exhaustion, Petitioner had failed to demonstrate 8 for each of his claims that he had previously raised the issues to the highest state court with a full 9 and fair opportunity to consider them. Id. at 2. The findings and recommendations also found 10 that Petitioner’s sixth request for additional time was unwarranted “to answer the straightforward 11 question of whether and how Petitioner has exhausted his claims.” Id. at 3. 12 On July 12, 2023, Petitioner filed a motion for reconsideration and objections to the 13 recommendation to dismiss the case (“Objections”). Doc. 31.1 Petitioner claimed that he had not 14 received the order to show cause and that he was unable to address the Court’s orders because he 15 was in severe pain. Id. at 2-3. He requested a final 90-day extension of time to respond, a sixth 16 extension of time. Id. at 3. Petitioner has not made any further filing in this case since July 12, 17 2023. Although Petitioner claimed in his Objections that he was physically unable to address the 18 Court’s orders, the Objections consisted of several handwritten pages and twelve pages of 19 exhibits concerning his request for an extension of time. Petitioner did not address the magistrate 20 judge’s finding that he had failed to demonstrate exhaustion of state remedies on his claims. 21 Despite being on notice since the Court’s May 12, 2022, screening order that he had failed to 22 demonstrate exhaustion of state remedies, and despite being given multiple extensions of time, 23 Petitioner has failed to make any such showing of exhaustion of his state remedies, even though 24 he submitted multiple filings to the Court between May 2022 and July 2023. 25

26 1 Petitioner’s Objections state that he is responding to the Court’s “recommendation to 27 dismiss case for failure to comply with a court order.” Doc. 31 (caption). The findings and recommendations did not recommend dismissal of the petition for Petitioner’s failure to comply 1 Pursuant to 28 U.S.C. § 636(b)(1), this Court conducted a de novo review of this case. 2 | Having carefully reviewed the entire matter, this Court concludes the findings and 3 || recommendations are supported by the record and by proper analysis. Petitioner has failed to 4 | demonstrate exhaustion of state remedies. The Court cannot consider a petition that raises 5 | unexhausted claims. Rose v. Lundy, 455 U.S. 509, 521-22 (1982). 6 Accordingly, the Court HEREBY ORDERS: 7 1. The June 29, 2023, findings and recommendations (Doc. 30) are ADOPTED IN FULL; 8 2. Petitioner’s petition for writ of habeas corpus (Doc. 1) is dismissed without prejudice 9 for lack of exhaustion; 10 3. Petitioner’s motion for reconsideration (Doc. 31) is DENIED; 11 4. Petitioner’s motion for extension of time (Doc. 28) is DENIED AS MOOT; and 12 5. The Clerk of the Court is directed to close this case. 13 14 15 | IT IS SO ORDERED. _ 16 Dated: _ April 7, 2024 4A . UNITED STATES DISTRICT JUDGE

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