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

• Court: District Court, E.D. California
• Decided: March 3, 2025
• Docket: 2:24-cv-02432
• Status: Unknown

Opinion

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-2432-JDP (P) 12 Petitioner, 13 v. ORDER 14 SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO, 15 Respondent. 16

17 18 Petitioner, a state prisoner, brings this action under section 2254. ECF No. 1. The 19 petition appears unexhausted, however. I will dismiss the current petition and give petitioner an 20 opportunity to amend and to explain why this action should proceed. I will grant petitioner’s 21 application to proceed in forma pauperis, ECF No. 7, and deny his motion vacate conviction or 22 sentence, ECF No. 9. 23 The petition is before me for preliminary review under Rule 4 of the Rules Governing 24 Section 2254 Cases. Under Rule 4, the judge assigned to the habeas proceeding must examine 25 the habeas petition and order a response to the petition unless it “plainly appears” that the 26 petitioner is not entitled to relief. See Valdez v. Montgomery, 918 F.3d 687, 693 (9th Cir. 2019); 27 Boyd v. Thompson, 147 F.3d 1124, 1127 (9th Cir. 1998). 28 Petitioner is challenging a conviction that occurred in February of 2024. ECF No. 1 at 1. 1 | He states that a claim for ineffective assistance of counsel is pending before a state appellate 2 | court. /d. at 2. Petitioner also indicates that no claim connected to this conviction has been 3 | presented to the California Supreme Court. Jd. A federal habeas claim must be exhausted by 4 | presentation to the highest state court. See Gatlin v. Madding, 189 F.3d 882, 888 (9th Cir. 1999) 5 | (“To exhaust a habeas claim properly, a petitioner must present his claim to the state supreme 6 | court even if that court’s review is discretionary.”). 7 Rather than recommending dismissal of the case, I will dismiss the petition with leave to 8 | amend. Petitioner may file a new petition that addresses these deficiencies and explains why he 9 | believes his claim should proceed. Given that the operative petition does not present a cognizable 10 | claim, I will also deny petitioner’s motion to vacate conviction or sentence; he will be entitled to 11 | such relief only if he succeeds in this habeas action. 12 Accordingly, it is ORDERED that: 13 1. Petitioner’s application to proceed in forma pauperis, ECF No. 7, is GRANTED. 14 2. The petition, ECF No. 1, is DISMISSED with leave to amend. 15 3. Within thirty days from service of this order, petitioner shall file either (1) an 16 | amended petition or (2) notice of voluntary dismissal of this action without prejudice. 17 4. Failure to timely file either an amended petition or notice of voluntary dismissal 18 || may result in the imposition of sanctions, including a recommendation that this action be 19 || dismissed with prejudice pursuant to Federal Rule of Civil Procedure 41(b). 20 5. The Clerk of Court shall send petitioner a habeas petition form with this order. 21 6. Petitioner’s motion to vacate conviction or sentence, ECF No. 9, is DENIED. 22 73 IT IS SO ORDERED. 24 ( q Sty — Dated: _ February 28, 2025 ow—— 25 JEREMY D. PETERSON 26 UNITED STATES MAGISTRATE JUDGE

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