United States District Court, E.D. California
September 22, 2014
VICTOR SALGADO, Petitioner,
DAVID LONG, Respondent.
TROY L. NUNLEY, District Judge.
Petitioner, a state prisoner proceeding pro se, has filed this application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.
On August 5, 2014, the magistrate judge filed findings and recommendations herein which were served on all parties and which contained notice to all parties that any objections to the findings and recommendations were to be filed within fourteen days. Respondent has filed objections to the findings and recommendations.
In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304, this court has conducted a de novo review of this case. Having carefully reviewed the entire file, the court finds the findings and recommendations to be supported by the record and by proper analysis.
The magistrate judge recommends that Respondent's motion to dismiss the petition as unexhausted be denied. Respondent objects to the findings and recommendations on the ground that the petition should be dismissed because Petitioner did not exhaust his claims before filing his petition in this Court. ECF No. 18. The exhaustion requirement, however, is not jurisdictional, and is only required prior to granting a petitioner's application for a writ of habeas corpus. See 28 U.S.C. § 2254(b)(1); Hendricks v. Zenon , 993 F.2d 664, 672 (9th Cir. 1993) (explaining that instead, exhaustion "is essentially a matter of federalism and comity").
Accordingly, IT IS HEREBY ORDERED that:
1. The findings and recommendations filed August 5, 2014, are adopted in full.
2. Respondent's January 14, 2014 motion to dismiss (ECF No. 12) is denied.
3. Respondent is directed to file and serve an answer in response to Petitioner's application within 60 days from the date of this order. See Rule 4, Rules Governing § 2254 Cases. Any response should be accompanied by any and all transcripts or other documents relevant to the determination of the issues presented in the application. See Rules 4, 5, Rules Governing § 2254 Cases.
4. Petitioner's reply, if any, is due within 30 days of service of the answer.