(HC) Koppe v. Warden

8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA NICHOLAS TYLER KOPPE, No. 2:24-cv-00445 KJN P 12 Petitioner, 13 v. ORDER AND FINDINGS AND RECOMMENDATIONS WARDEN, 15 Respondent.

17 Petitioner, a state prisoner proceeding pro se, filed an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 together with a request to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. Petitioner submitted a declaration that makes the showing required by § 1915(a). Accordingly, the request to proceed in forma pauperis will be granted.

21 28 U.S.C. § 1915(a).

22 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 A petition may be denied on the merits without exhaustion of state court remedies. 28 U.S.C. § 28 2254(b)(2).

1 | the federal court. Picard v. Connor, 404 U.S. 270, 276 (1971); Middleton v. Cupp, 768 F.2d 2 | 1083, 1086 (9th Cir. 1985), cert. denied, 478 U.S. 1021 (1986).

3 After reviewing the petition for habeas corpus, the court finds that petitioner failed to || exhaust state court remedies. The claims were not presented to the California Supreme Court.

5 || Further, 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. Petitioner is granted leave to proceed in forma pauperis (ECF No. 2); 9 2. The Clerk of the Court shall assign a district judge to this action; and 10 IT IS HEREBY RECOMMENDED that petitioner’s application for a writ of || corpus be dismissed for failure to exhaust state remedies.

12 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.” If petitioner files objections, he shall also address || whether a certificate of appealability should issue and, if so, why and as to which issues. A | certificate of appealability may issue under 28 U.S.C. § 2253 “only if the applicant has made a | substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(3). 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).

22 || Dated: February 15, 2024 / a8 } Hf | Ld a — 23 CAROLYN DELANEY.

34 | Soppetto.tos 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).