(HC) Brannigan v. Lynch

8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA JASON R. BRANNIGAN, No. 2:23-cv-0541 CKD P 12 Petitioner, 13 v. ORDER AND JEFF LYNCH, FINDINGS AND RECOMMENDATIONS 15 Respondent.

17 Petitioner is a state prisoner proceeding pro se with a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. On August 18, 2023, the court dismissed petitioner’s original petition with leave to amend. Petitioner has now filed an amended petition.

20 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). 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 1083, 1086 (9th Cir. 1985), cert. denied, 478 U.S. 1021 (1986).

25 After reviewing the record in this action, the court finds that petitioner has failed to exhaust state court remedies with respect to the claim presented in his amended petition as he has ///// ///// not presented it to the California Supreme Court. Therefore, the court will recommend that the amended petition be dismissed and this case be closed.1 3 In accordance with the above, IT IS HEREBY ORDERED that the Clerk of the Court assign a district court judge to this case; and 5 IT IS HEREBY RECOMMENDED that: 6 1. Petitioner’s amended petition for a writ of habeas corpus be dismissed for failure to exhaust state court remedies; and 8 2. This case be closed.

9 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)(l). 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.” In his objections petitioner may address whether a certificate of appealability should issue in the event he files an appeal of the judgment in this case. See Rule 11, Federal Rules Governing Section 2254 Cases (the district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant). Where, as here, a habeas petition is dismissed on procedural grounds, a certificate of appealability “should issue if the prisoner can show: (1) ‘that jurists of reason would find it debatable whether the district court was correct in its procedural ruling;’ and (2) ‘that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right.’” Morris v. Woodford, 229 F.3d 775, 780 (9th Cir. 2000) (quoting Slack v. McDaniel, 529 U.S. 473, 484 ///// ///// ///// 1 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).

1 |} (2000)). 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).

3 || Dated: September 6, 2023 Card Kt | (£4 (g— 4 CAROLYN K.DELANEY 5 UNITED STATES MAGISTRATE JUDGE 8] 1 bran0541.103 1]