(HC) Campos v. The People

8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA ESTEBAN CAMPOS, No. 2:23-cv-1308 CKD P 12 Petitioner, 13 v. ORDER AND THE PEOPLE, FINDINGS AND RECOMMENDATIONS 15 Respondent.

17 Petitioner, a state prisoner proceeding pro se, has filed an amended application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. 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).

23 The court has reviewed the amended petition, and it does not appear that any of the claims have been presented to the California Supreme Court. Further, there is no allegation that state court remedies are no longer available to petitioner. Accordingly, the amended petition should be dismissed without prejudice as the claims have not been exhausted in state court.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 ] Good cause appearing, IT IS HEREBY ORDERED that: 2 1. The Clerk of the Court assign a district court judge to this case; and 3 2. The Clerk of the Court serve a copy of these findings and recommendations together || with a copy of the amended petition for writ of habeas corpus filed in the instant case on the || Attorney General of the State of California.

6 IT IS HEREBY RECOMMENDED that petitioner’s application for a writ of habeas || corpus be dismissed for failure to exhaust state remedies.

8 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.” In 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 | (2000)). Petitioner is advised that failure to file objections within the specified time may waive | the nght to appeal the District Court’s order. Martinez v. YIst, 951 F.2d 1153 (9th Cir. 1991).

23 | Dated: September 21, 2023 / ae / a ly. ae 24 CAROLYN DELANEY.

25 camp! 308.103 UNITED STATES MAGISTRATE JUDGE 26 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).