(HC) Vasquez v. Unknown

8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA JORGE ALEJANDRO VASQUEZ, No. 2:24-cv-02818-SCR P 12 Petitioner, 13 v. ORDER AND UNKNOWN, FINDINGS AND RECOMMENDATIONS 15 Respondent.

17 Petitioner, a state prisoner, proceeds without counsel and filed a petition for writ of habeas corpus under 28 U.S.C. § 2254. (ECF No. 1.) Petitioner paid the filing fee.

19 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 25 1083, 1086 (9th Cir. 1985), cert. denied, 478 U.S. 1021 (1986).

26 After reviewing the petition for habeas corpus, the court finds petitioner has failed to A petition may be denied on the merits without exhaustion of state court remedies. 28 U.S.C. § 28 2254(b)(2).

1 | exhaust state court remedies on all three grounds for relief. (ECF No. 1.) Petitioner’s first ground | for relief has not been presented to any state court. (Id. at 7.) Petitioner’s second ground for | relief is pending before the California Court of Appeal. (Id. at 8.) Petitioner’s third ground for | relief has not been presented to any state court. (Id. at 10.)

5 There is no allegation that state court remedies are no longer available to petitioner.

6 | Accordingly, the petition should be dismissed without prejudice.”

7 Good cause appearing, IT IS HEREBY ORDERED that: 8 1. The Clerk of the Court assign a district judge to this case; and 9 2. The Clerk of the Court is directed to serve a copy of these findings and | recommendations together with a copy of the petition filed in the instant case on the Attorney || General of the State of California; and 12 In addition, IT IS HEREBY RECOMMENDED that petitioner’s application for a writ of | habeas corpus be dismissed for failure to exhaust state remedies.

14 These findings and recommendations will be submitted to the United States District Judge | assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within 21 days after | being served with these findings and recommendations, petitioner may file written objections || with the court. The document should be captioned “Objections to Findings and | Recommendations.” 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. Ylst, 951 F.2d 1153 | (9th Cir. 1991).

21 || Dated: November 22, 2024 23 SEAN C. RIORDAN 24 UNITED STATES MAGISTRATE JUDGE | 2 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).