(HC) Wade v. Hill

8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA CHANCELLOR WADE, Case No. 2:22-cv-00556-WBS-JDP (HC) 12 Petitioner, ORDER GRANTING PETITIONER’S APPLICATION TO PROCEED IN FORMA 13 v. PAUPERIS RICK HILL, ECF No. 2 15 Respondent. FINDING THAT THE PETITION IS UNEXHAUSTED AND RECOMMENDING 16 THAT IT BE DISMISSED WITHOUT PREJUDICE ECF No. 1 19 Petitioner, proceeding without counsel, seeks a writ of habeas corpus under 28 U.S.C. § 2254. After reviewing the petition, I find that his claims are unexhausted and recommend that it be dismissed.

22 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).

27 Petitioner alleges that his conviction was obtained in violation of his Fourteenth Amendment rights. ECF No. 1 at 2-3. He states, however, that this habeas claim is still pending | before the California Supreme Court. Jd. at 2. Thus, his claim is unexhausted. See Scott v. | Schriro, 567 F.3d 573, 582 (9th Cir. 2009) (“A petitioner satisfies the exhaustion requirement by | fully and fairly presenting each claim to the highest state court.”). Petitioner may re-file his | petition once he has exhausted his claims in state court.

5 Separately, petitioner appears to allege that his rights were violated when the clerk for the | California Supreme Court appointed unwanted counsel for him. ECF No. 1 at 16. This claim | does not directly implicate the propriety of petitioner’s conviction, however. Moreover, given | that his claim in front of the California Supreme Court is still pending, petitioner has not shown | that this appointment prejudiced him.

10 It is ORDERED that petitioner’s application to proceed in forma pauperis, ECF No. 2, is | GRANTED.

12 Further, it is RECOMMENDED that the petition, ECF No. 1, be DISMISSED without || prejudice as unexhausted.

14 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 | of service of the findings and recommendations, petitioner may file written objections to the | findings and recommendations with the court and serve a copy on all parties. 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).

73 IT IS SO ORDERED.

24 ( q Sty — Dated: _ April 25, 2022 □□ 25 JEREMY D. PETERSON 26 UNITED STATES MAGISTRATE JUDGE