(HC) Taylor v. District Attorney

• Court: District Court, E.D. California
• Decided: October 15, 2024
• Docket: 2:24-cv-01400
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ROBERT ANTHONY TAYLOR, No. 2:24-cv-01400 SCR P 12 Petitioner, 13 v. ORDER AND FINDINGS AND RECOMMENDATIONS 14 DISTRICT ATTORNEY, 15 Respondent. 16 17 Petitioner, a state prisoner proceeding pro se, initiated this action with an unsigned 18 petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. (ECF No. 1.) Subsequently, 19 petitioner filed a signed petition and a request to proceed in forma pauperis pursuant to 28 U.S.C. 20 § 1915. (ECF Nos. 6, 7.) Petitioner has submitted a declaration that makes the showing required 21 by § 1915(a). Accordingly, the request to proceed in forma pauperis will be granted. 22 28 U.S.C. § 1915(a). 23 The exhaustion of state court remedies is a prerequisite to the granting of a petition for 24 writ of habeas corpus. 28 U.S.C. § 2254(b)(1). If exhaustion is to be waived, it must be waived 25 explicitly by respondent’s counsel. 28 U.S.C. § 2254(b)(3).1 A waiver of exhaustion, thus, may 26 not be implied or inferred. A petitioner satisfies the exhaustion requirement by providing the 27 1 A petition may be denied on the merits without exhaustion of state court remedies. 28 U.S.C. § 28 2254(b)(2). 1 highest state court with a full and fair opportunity to consider all claims before presenting them to 2 the federal court. Picard v. Connor, 404 U.S. 270, 276 (1971); Middleton v. Cupp, 768 F.2d 3 1083, 1086 (9th Cir. 1985), cert. denied, 478 U.S. 1021 (1986). 4 After reviewing the petition for habeas corpus, the court finds that petitioner has failed to 5 exhaust state court remedies. Petitioner’s direct appeal to the California Court of Appeal is still 6 pending, and the claims in the petition have not been presented to the California Supreme Court. 7 (ECF No. 7 at 2.) There is no allegation that state court remedies are no longer available to 8 petitioner. Accordingly, the petition should be dismissed without prejudice.2 9 Good cause appearing, IT IS HEREBY ORDERED that: 10 1. Petitioner’s motion to proceed in forma pauperis (ECF No. 6) is granted; 11 2. The Clerk of the Court assign a district judge to this case; and 12 3. The Clerk of the Court is directed to serve a copy of these findings and 13 recommendations together with a copy of the petition filed in the instant case on the Attorney 14 General of the State of California; and 15 IT IS HEREBY RECOMMENDED that petitioner’s application for a writ of habeas 16 corpus be dismissed for failure to exhaust state remedies. 17 These findings and recommendations will be submitted to the United States District Judge 18 assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 21 days after 19 being served with these findings and recommendations, petitioner may file written objections 20 with the court. The document should be captioned “Objections to Findings and 21 Recommendations.” Petitioner is advised that failure to file objections within the specified 22 //// 23 //// 24

25 2 Petitioner is cautioned that the habeas corpus statute imposes a one year statute of limitations 26 for filing non-capital habeas corpus petitions in federal court. In most cases, the one year period will start to run on the date on which the state court judgment became final by the conclusion of 27 direct review or the expiration of time for seeking direct review, although the statute of limitations is tolled while a properly filed application for state post-conviction or other collateral 28 review is pending. 28 U.S.C. § 2244(d). 1 || time may waive the right to appeal the District Court’s order. Martinez v. YIst, 951 F.2d 1153 2 | (9th Cir. 1991). 3 || DATED: October 15, 2024 , .

5 SEAN C. RIORDAN UNITED STATES MAGISTRATE JUDGE 6 7 8 9 10 1] 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28