1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ROBERT ANTHONY TAYLOR, No. 2:24-cv-1719 TLN SCR P 12 Petitioner, ORDER VACATING FINDINGS AND RECOMMENDATIONS 13 v. AND 14 KERN STATE PRISON, AMENDED FINDINGS AND 15 Respondent. RECOMMENDATIONS 16 17 Petitioner, a state prisoner proceeding without counsel, filed a petition for writ of habeas 18 corpus. (ECF No. 1.) On September 3, 2024, the court ordered petitioner to submit, within thirty 19 days, an affidavit in support of his request to proceed in forma pauperis or the appropriate filing 20 fee. (ECF No. 5.) The time granted for that purpose expired, and on October 28, 2024, the 21 undersigned recommended this action be dismissed without prejudice. (ECF No. 7.) Petitioner 22 filed objections to the findings and recommendations indicating he “filled out a fee waiver” 23 which “the Clerk did not receive[.]” (ECF No. 7.) Based on petitioner’s objections, the 24 undersigned vacates the prior findings and recommendations and issues these amended findings 25 and recommendations to dismiss. 26 I. In Forma Pauperis 27 As set forth below, it clearly appears the petition is unexhausted. Because the petition 28 must be dismissed, there is no need for petitioner to re-submit an affidavit in support of his 1 request to proceed in forma pauperis. See Tripati v. First Nat’l Bank & Tr.,

, 1370 2 (9th Cir. 1987) (a district court may deny leave to proceed in forma pauperis at the outset if it 3 appears from the face of the proposed pleading that the action is frivolous or without merit). 4 II. Screening Standard 5 In screening the habeas petition, the court applies the Rule 4 framework of the Rules 6 Governing Section 2254 Cases in the United States District Courts. See 28 U.S.C. foll. § 2254, 7 Rule 4. If it plainly appears from the petition, any attached exhibits, and the record of prior 8 proceedings that the moving party is not entitled to relief, then the petition must be dismissed. Id.; 9 Herbst v. Cook,

(9th Cir. 2001). 10 III. Discussion 11 Petitioner challenges his January 2024 conviction which is on appeal to the California 12 Court of Appeal. (ECF No. 1.) Petitioner asserts two grounds for relief: (1) the so-called victim 13 did not submit to a sobriety test, did not follow California bicycle laws, and did not show up for 14 trial, and (2) plaintiff was ripped off at the canteen at North Kern State Prison. (Id. at 1-2.) 15 A. Ground One is Unexhausted 16 To the extent petitioner requests relief that can be granted through a writ of habeas corpus, 17 the petition is unexhausted, and must be dismissed. The exhaustion of state court remedies is a 18 prerequisite to the granting of a petition for writ of habeas corpus.

(b)(1). If 19 exhaustion is to be waived, it must be waived explicitly by respondent’s counsel.

2254(b)(3).1 A waiver of exhaustion, thus, may not be implied or inferred. A petitioner satisfies 21 the exhaustion requirement by providing the highest state court with a full and fair opportunity to 22 consider all claims before presenting them to the federal court. Picard v. Connor,

, 23 276 (1971); Middleton v. Cupp,

(9th Cir. 1985), cert. denied,

24 (1986). 25 Petitioner’s direct appeal to the California Court of Appeal is pending, and the claims in 26 the petition have not been presented to the California Supreme Court. (See ECF No. 1 at 2-3.) 27 1 A petition may be denied on the merits without exhaustion of state court remedies.

2254(b)(2). 1 There is no allegation that state court remedies are no longer available to petitioner. Accordingly, 2 the petition should be dismissed without prejudice as unexhausted. 3 B. Ground Two is Not Cognizable 4 Petitioner’s claim that he was ripped off at canteen is not cognizable on habeas corpus and 5 such a claim may be brought, if at all, only under

. See Blair v. Martel,

1151, 1157-58 (9th Cir. 2011); Ramirez v. Galaza,

(9th Cir. 2003). However, 7 plaintiff cannot state a claim under § 1983 based on deprivation of property in the manner alleged 8 because California state law provides an adequate post-deprivation remedy. See Zimmerman v. 9 City of Oakland,

(9th Cir. 2001); Barnett v. Centoni,

(9th 10 Cir. 1994) (per curiam). Accordingly, the undersigned will not recommend the court convert 11 ground two of the present petition to a civil rights action. See Nettles v. Grounds,

, 12 936 (9th Cir. 2016) (a district court may construe a petition for habeas corpus to plead a cause of 13 action under § 1983 after notifying and obtaining informed consent from the prisoner). Doing so 14 would subject petitioner to filing fee requirements, sua sponte review of the complaint by the 15 court, and limits on the number of actions a prisoner may be permitted to file in forma pauperis. 16 See

& 1915A; 42 U.S.C. § 1997e. 17 IV. Conclusion, Order, and Recommendation 18 After reviewing the petition for habeas corpus, it clearly appears petitioner failed to 19 exhaust state court remedies as to ground one. Ground two is not cognizable in a habeas action. 20 For the reasons set forth above, IT IS ORDERED that the findings and recommendations 21 filed on October 28, 2024 (ECF No. 6) are VACATED. 22 As amended findings and recommendations, IT IS RECOMMENDED as follows: 23 1. The petition for writ of habeas corpus be dismissed without leave to amend because 24 ground one is unexhausted and ground two is not cognizable. 25 2. The court decline to issue a certificate of appealability. 26 3. The Clerk of Court be directed to close this case. 27 These findings and recommendations will be submitted to the United States District Judge 28 assigned to this case, pursuant to the provisions of

(b)(l). Within 21 days after 1 | being served with these findings and recommendations, petitioner may file written objections 2 || with the court. The document should be captioned “Objections to Findings and 3 || Recommendations.” Petitioner is advised that failure to file objections within the specified time 4 | may waive the right to appeal the District Court’s order. Martinez v. YIst,

(9th Cir. 5 | 1991). 6 | DATED: December 11, 2024 . foo 8 9 SEAN C. RIORDAN UNITED STATES MAGISTRATE JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28