(HC) Forsyth v. Unknown

8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA MISTY M. FORSYTH, No. 2: 22-cv-1248 KJN P 12 Petitioner, 13 v. ORDER AND FINDINGS AND RECOMMENDATIONS UNKNOWN, 15 Respondent.

17 Petitioner, a state prisoner proceeding pro se, filed an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner paid the filing fee.

19 The petition raises one claim: petitioner is entitled to resentencing pursuant to Senate Bill 81.

21 The exhaustion of state court remedies is a prerequisite to the granting of a petition for writ of habeas corpus. 28 U.S.C. § 2254(b)(1). If exhaustion is to be waived, it must be waived explicitly by respondent’s counsel. 28 U.S.C. § 2254(b)(3).1 A waiver of exhaustion, thus, may not be implied or inferred. A petitioner satisfies the exhaustion requirement by providing the highest state court with a full and fair opportunity to consider all claims before presenting them to the federal court. Picard v. Connor, 404 U.S. 270, 276 (1971); Middleton v. Cupp, 768 F.2d 27 A petition may be denied on the merits without exhaustion of state court remedies. 28 U.S.C. § 2254(b)(2).

1 |} 1083, 1086 (9th Cir. 1985), cert. denied, 478 U.S. 1021 (1986).

2 After reviewing the petition for habeas corpus, the court finds that petitioner failed to || exhaust state court remedies. The claim raised in the petition was not presented to the California || Supreme Court.” Further, there is no allegation that state court remedies are no longer available || to petitioner. Accordingly, the petition should be dismissed without prejudice.* 6 Accordingly, IT IS HEREBY ORDERED that the Clerk of the Court shall appoint a || district judge to this action; and 8 IT IS HEREBY RECOMMENDED that petitioner’s application for a writ of habeas || corpus be dismissed for failure to exhaust state remedies.

10 These findings and recommendations are submitted to the United States District Judge || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days | after being served with these findings and recommendations, petitioner may file written || objections with the court. Such a document should be captioned “Objections to Magistrate || Judge’s Findings and Recommendations.” If petitioner files objections, she shall also address || whether a certificate of appealability should issue and, if so, why and as to which issues. A || certificate of appealability may issue under 28 U.S.C. § 2253 “only if the applicant has made a || substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(3). Petitioner is || advised that failure to file objections within the specified time may waive the right to appeal the | District Court’s order. Martinez v. YIst, 951 F.2d 1153 (9th Cir. 1991).

20 | Dated: July 20, 2022 | forl248.dis Herd Ad L Norpteece.

22 KENDALL J. NE — UNITED STATES MAGISTRATE JUDGE || * It appears that petitioner may have intended to file this action in state court. Because petitioner was convicted in Shasta County, it appears that her request for resentencing should first be raised || in the Shasta County Superior Court.

25 | 3 Petitioner is cautioned that the habeas corpus statute imposes a one year statute of limitations || 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 || 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 | review is pending. 28 U.S.C. § 2244(d).