(HC) Vasquez v. Unknown

• Court: District Court, E.D. California
• Decided: November 25, 2024
• Docket: 2:24-cv-02818
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JORGE ALEJANDRO VASQUEZ, No. 2:24-cv-02818-SCR P 12 Petitioner, 13 v. ORDER AND 14 UNKNOWN, FINDINGS AND RECOMMENDATIONS 15 Respondent. 16 17 Petitioner, a state prisoner, proceeds without counsel and filed a petition for writ of habeas 18 corpus under 28 U.S.C. § 2254. (ECF No. 1.) Petitioner paid the filing fee. 19 The exhaustion of state court remedies is a prerequisite to the granting of a petition for 20 writ of habeas corpus. 28 U.S.C. § 2254(b)(1). If exhaustion is to be waived, it must be waived 21 explicitly by respondent’s counsel. 28 U.S.C. § 2254(b)(3).1 A waiver of exhaustion, thus, may 22 not be implied or inferred. A petitioner satisfies the exhaustion requirement by providing the 23 highest state court with a full and fair opportunity to consider all claims before presenting them to 24 the federal court. Picard v. Connor, 404 U.S. 270, 276 (1971); Middleton v. Cupp, 768 F.2d 25 1083, 1086 (9th Cir. 1985), cert. denied, 478 U.S. 1021 (1986). 26 After reviewing the petition for habeas corpus, the court finds petitioner has failed to 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 | exhaust state court remedies on all three grounds for relief. (ECF No. 1.) Petitioner’s first ground 2 | for relief has not been presented to any state court. (Id. at 7.) Petitioner’s second ground for 3 | relief is pending before the California Court of Appeal. (Id. at 8.) Petitioner’s third ground for 4 | relief has not been presented to any state court. (Id. at 10.) 5 There is no allegation that state court remedies are no longer available to petitioner. 6 | Accordingly, the petition should be dismissed without prejudice.” 7 Good cause appearing, IT IS HEREBY ORDERED that: 8 1. The Clerk of the Court assign a district judge to this case; and 9 2. The Clerk of the Court is directed to serve a copy of these findings and 10 | recommendations together with a copy of the petition filed in the instant case on the Attorney 11 || General of the State of California; and 12 In addition, IT IS HEREBY RECOMMENDED that petitioner’s application for a writ of 13 | habeas corpus be dismissed for failure to exhaust state remedies. 14 These findings and recommendations will be submitted to the United States District Judge 15 | assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within 21 days after 16 | being served with these findings and recommendations, petitioner may file written objections 17 || with the court. The document should be captioned “Objections to Findings and 18 | Recommendations.” Petitioner is advised that failure to file objections within the specified 19 | time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 20 | (9th Cir. 1991). 21 || Dated: November 22, 2024

23 SEAN C. RIORDAN 24 UNITED STATES MAGISTRATE JUDGE 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).