(HC) Kern v. Superior Court of CA, County of Sacramento

Opinion

JAMES CURTIS KERN, Case No. 2:24-cv-2432-JDP (P) Petitioner, v. ORDER COUNTY OF SACRAMENTO, Respondent.

Petitioner, a state prisoner, brings this action under section 2254. ECF No. 1. The petition appears unexhausted, however. I will dismiss the current petition and give petitioner an opportunity to amend and to explain why this action should proceed. I will grant petitioner’s application to proceed in forma pauperis, ECF No. 7, and deny his motion vacate conviction or sentence, ECF No. 9. The petition is before me for preliminary review under Rule 4 of the Rules Governing Section 2254 Cases. Under Rule 4, the judge assigned to the habeas proceeding must examine the habeas petition and order a response to the petition unless it “plainly appears” that the petitioner is not entitled to relief. See Valdez v. Montgomery, 918 F.3d 687, 693 (9th Cir. 2019); Boyd v. Thompson, 147 F.3d 1124, 1127 (9th Cir. 1998). Petitioner is challenging a conviction that occurred in February of 2024. ECF No. 1 at 1. He states that a claim for ineffective assistance of counsel is pending before a state appellate court. /d. at 2. Petitioner also indicates that no claim connected to this conviction has been presented to the California Supreme Court. Jd. A federal habeas claim must be exhausted by presentation to the highest state court. See Gatlin v. Madding, 189 F.3d 882, 888 (9th Cir. 1999) (“To exhaust a habeas claim properly, a petitioner must present his claim to the state supreme court even if that court’s review is discretionary.”). Rather than recommending dismissal of the case, I will dismiss the petition with leave to amend. Petitioner may file a new petition that addresses these deficiencies and explains why he believes his claim should proceed. Given that the operative petition does not present a cognizable claim, I will also deny petitioner’s motion to vacate conviction or sentence; he will be entitled to such relief only if he succeeds in this habeas action. Accordingly, it is ORDERED that: 1. Petitioner’s application to proceed in forma pauperis, ECF No. 7, is GRANTED. 2. The petition, ECF No. 1, is DISMISSED with leave to amend. 3. Within thirty days from service of this order, petitioner shall file either (1) an amended petition or (2) notice of voluntary dismissal of this action without prejudice. 4. Failure to timely file either an amended petition or notice of voluntary dismissal may result in the imposition of sanctions, including a recommendation that this action be dismissed with prejudice pursuant to Federal Rule of Civil Procedure 41(b). 5. The Clerk of Court shall send petitioner a habeas petition form with this order. 6. Petitioner’s motion to vacate conviction or sentence, ECF No. 9, is DENIED. ( q Sty — Dated: _ February 28, 2025 ow—— JEREMY D. PETERSON UNITED STATES MAGISTRATE JUDGE