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8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10

11 JEROME WILSON, Case No. 1:24-cv-00426-EPG-HC

12 Petitioner, FINDINGS AND RECOMMENDATION TO DENY PETITIONER’S MOTION TO STAY 13 v. AND DISMISS PETITION FOR WRIT OF HABEAS CORPUS WITHOUT PREJUDICE 14 PEOPLE OF THE STATE OF CALIFORNIA, 15 (ECF No. 6) Respondent. 16 ORDER DIRECTING CLERK OF COURT TO ASSIGN DISTRICT JUDGE 17 18 Petitioner Jerome Wilson is a state prisoner proceeding pro se with a petition for writ of 19 habeas corpus pursuant to

. For the reasons set forth herein, the undersigned 20 recommends denial of the motion to stay and dismissal of the petition without prejudice. 21 I. 22 BACKGROUND 23 On April 10, 2024, Petitioner filed the instant petition for writ of habeas corpus. (ECF 24 No. 1.) On May 15, 2024, the Court ordered Petitioner to show cause why the petition should not 25 be dismissed as unexhausted and for failure to state a cognizable federal habeas claim. (ECF No. 26 5.) On June 3, 2024, Petitioner moved to stay the proceedings so that he can return to state court 27 and exhaust state remedies. (ECF No. 6.) /// 1 II. 2 DISCUSSION 3 The Rules Governing Section 2254 Cases (“Habeas Rules”) require preliminary review 4 of a habeas petition and allow a district court to dismiss a petition before the respondent is 5 ordered to file a response, if it “plainly appears from the petition and any attached exhibits that 6 the petitioner is not entitled to relief in the district court.” Rule 4, Rules Governing Section 2254 7 Cases in the United States District Courts, 28 U.S.C. foll. § 2254. 8 A. Exhaustion 9 A petitioner in state custody who is proceeding with a petition for writ of habeas corpus 10 must exhaust state judicial remedies.

(b)(1). The exhaustion doctrine is based 11 on comity to the state court and gives the state court the initial opportunity to correct the state’s 12 alleged constitutional deprivations. Coleman v. Thompson,

(1991); Rose v. 13 Lundy,

(1982). A petitioner can satisfy the exhaustion requirement by 14 providing the highest state court with a full and fair opportunity to consider each claim before 15 presenting it to the federal court. O’Sullivan v. Boerckel,

(1999); Duncan v. 16 Henry,

(1995); Picard v. Connor,

(1971). 17 The petition appears to indicate that Petitioner did not file an appeal or seek review in the 18 California Supreme Court with respect to the claims now presented, and in his motion to stay, 19 Petitioner appears to acknowledge that his claims are unexhausted. (ECF No. 1 at 5;1 ECF No. 20 6.) As Petitioner has not sought relief in the California Supreme Court for the claims that he 21 raises in the instant petition, the Court cannot proceed to the merits of those claims. 28 U.S.C. 22 § 2254(b)(1). 23 B. Stay and Abeyance 24 Petitioner requests that the Court stay the instant proceeding pursuant to while Petitioner 25 exhausts his remedies in state court. (ECF No. 6.) Under Rhines v. Weber,

(2005), 26 “stay and abeyance [is] available only in limited circumstances,” and only when: (1) there is 27 “good cause” for the failure to exhaust; (2) the “unexhausted claims are potentially meritorious”; 1 and (3) “there is no indication that the petitioner engaged in intentionally dilatory litigation 2 tactics.” 544 U.S. at 277–78. 3 “There is little authority on what constitutes good cause to excuse a petitioner’s failure to 4 exhaust” under Rhines. Blake v. Baker,

(9th Cir. 2014). “The Supreme Court 5 has addressed the issue only once, when it noted that a ‘petitioner’s reasonable confusion about 6 whether a state filing would be timely will ordinarily constitute ‘good cause’ for him to file in 7 federal court.’”

(quoting Pace v. DiGuglielmo,

(2005)). The Ninth Circuit 8 has “held that good cause under Rhines does not require a showing of ‘extraordinary 9 circumstances,’ but that a petitioner must do more than simply assert that he was ‘under the 10 impression’ that his claim was exhausted.” Dixon v. Baker,

(9th Cir. 2017) 11 (quoting Jackson v. Roe,

, 661–62 (9th Cir. 2005); and Wooten v. Kirkland, 540

(9th Cir. 2008)). “While a bald assertion cannot amount to a showing of good 13 cause, a reasonable excuse, supported by evidence to justify a petitioner’s failure to exhaust, 14 will.” Blake,

. Here, Petitioner does not provide any explanation whatsoever 15 regarding his failure to exhaust state remedies. 16 Further, Petitioner has not demonstrated that his unexhausted claims are potentially 17 meritorious. In the petition, Petitioner states that the petition concerns a sentence, specifically 18 noting “AB 600.”2 (ECF No. 1 at 2.) Petitioner believes that he is “eligible for resentencing 19 based on changing circumstances” and “recent legislation creates new grounds to resentence 20 [Petitioner] in the interests of justice.” (Id. at 4.) Whether Petitioner is entitled to be resentenced 21 pursuant to A.B. 600 is an issue of state law, “and alleged errors in the application of state law 22 are not cognizable in federal habeas corpus.” Langford v. Day,

(9th Cir. 23 1996). See Estelle v. McGuire,

, 67–68 (1991) (“[I]t is not the province of a federal 24 habeas court to reexamine state-court determinations on state-law questions.”). 25 2 California Assembly Bill No. 600 (“A.B. 600”) went into effect on January 1, 2024. People v. Dain, 99

, 404 (Cal. Ct. App. 2024). California Penal Code “Section 1172.1 provides a recall and resentencing procedure that may be invoked when, for example, the Secretary of the Department of Corrections and Rehabilitation recommends resentencing.” Dain, 99 Cal. App. 5th at 411. “A.B. 600 27 amended section 1172.1 to allow a trial court, on its own motion, to recall a sentence and resentence a defendant when ‘applicable sentencing laws at the time of the original sentencing are subsequently 1 Based on the foregoing, the Court finds that Petitioner has not satisfied the requirements 2 | under Rhines, and the motion to stay should be denied. 3 Il. 4 RECOMMENDATION & ORDER 5 Accordingly, the undersigned HEREBY RECOMMENDS that: 6 1. Petitioner’s motion to stay (ECF No. 6) be DENIED; and 7 2. The petition for writ of habeas corpus be DISMISSED WITHOUT PREJUDICE for 8 failure to exhaust state court remedies. 9 Further, the Clerk of Court is DIRECTED to randomly assign a District Court Judge to 10 | the present matter. 11 This Findings and Recommendation is submitted to the assigned United States District 12 | Court Judge, pursuant to the provisions of

(b)(1)(B) and Rule 304 of the Local 13 | Rules of Practice for the United States District Court, Eastern District of California. Within 14 | THIRTY (30) days after service of the Findings and Recommendation, Petitioner may file 15 | written objections with the court and serve a copy on all parties. Such a document should be 16 | captioned “Objections to Magistrate Judge’s Findings and Recommendation.” The assigned 17 | United States District Court Judge will then review the Magistrate Judge’s ruling pursuant to 28 18 | U.S.C. § 636(b)(1)(C). The parties are advised that failure to file objections within the specified 19 | time may waive the right to appeal the District Court’s order. Wilkerson v. Wheeler,

| 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan,

(9th Cir. 1991)). 21 IT IS SO ORDERED. 23| Dated: _ June 12, 2024 [Je hey UNITED STATES MAGISTRATE JUDGE 25 26 27 28