(HC) Zunino v. Sutter County Superior Court

6 UNITED STATES DISTRICT COURT 7 FOR THE EASTERN DISTRICT OF CALIFORNIA DWIGHT ZUNINO, Case No. 2:22-cv-00140-EFB P 10 Petitioner, ORDER GRANTING PETITIONER’S APPLICATION TO PROCEED IN FORMA 11 v. PAUPERIS AND DIRECTING THE CLERK OF COURT TO ASSIGN A DISTRICT SUTTER COUNTY SUPERIOR COURT, JUDGE TO RULE ON THESE FINDINGS AND RECOMMENDATIONS 13 Respondent.

ECF No. 6 FINDINGS AND RECOMMENDATIONS 15 THAT THIS PETITION BE DISMISSED AS UNEXHAUSTED ECF No. 1 18 Petitioner, a state prisoner proceeding without counsel, has filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254, and a request to proceed in forma pauperis. He was convicted in 2020 and sentenced in October of 2021. ECF No. 1 at 2. As discussed below, the petition is unexhausted and, accordingly, it must be dismissed.

22 The amended petition is before the court 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).

27 Petitioner argues that the state court illegally imposed a sentencing enhancement without the requisite finding of fact by a jury. ECF No. 1 at 3. He also claims that the state court illegally | sentenced him to a term beyond the statutory maximum. /d. He acknowledges, however, that the | California Supreme Court has not yet ruled on these claims. /d. at 6. To exhaust federal habeas | claims, a petitioner must present them to the state’s highest court and receive a ruling therefrom.

4 | See Baldwin v. Reese, 541 U.S. 27, 29 (2004). Given that the petition contains only unexhausted | claims, the court recommends that it be dismissed. See Raspberry v. Garcia, 448 F.3d 1150, | 1154 (9th Cir. 2006). Petitioner may re-file his petition once he exhausts his claims in state court.

7 It is ORDERED that: 8 1. Petitioner’s application to proceed in forma pauperis, ECF No. 6, is granted.

9 2. The Clerk of Court shall assign a district judge to rule on these findings and | recommendations.

11 It is RECOMMENDED that petitioner’s petition, ECF No. 1, be dismissed without | prejudice for failure to exhaust.

13 These findings and recommendations are submitted to the U.S. District Court Judge | presiding over this case under 28 U.S.C. § 636(b)(1)(B) and Rule 304 of the Local Rules of | Practice for the United States District Court, Eastern District of California. Within fourteen days | ofservice of the findings and recommendations, petitioner may file written objections to the | findings and recommendations with the court. That document must be captioned “Objections to | Magistrate Judge’s Findings and Recommendations.” The District Judge will then review the | findings and recommendations under 28 U.S.C. § 636(b)(1)(C).

20 | Dated: March 1, 2022.

22 EDMUND F. BRENNAN 33 UNITED STATES MAGISTRATE JUDGE