United States District Court, E.D. California
ORDER AND FINDINGS AND RECOMMENDATIONS
F. BRENNAN UNITED STATES MAGISTRATE JUDGE
is civilly committed and in the custody of the California
Department of Corrections and Rehabilitation. He proceeds
without counsel on a petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254. He also requests a
temporary restraining order and the appointment of
counsel. ECF Nos. 1, 6, 8.
claims he was civilly committed in 1997 following his plea of
not guilty by reason of insanity. He seeks habeas relief on
the grounds that (1) because he was ordered civilly
committed, he should not be housed in prison among convicted
criminals; (2) his attorney denied him access to the courts;
and (3) the California Department of Corrections and
Rehabilitation has denied him his right to a hearing
regarding the restoration of his sanity. See ECF No.
to the petition, petitioner has not presented any of his
grounds for relief to the California Supreme Court.
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). 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
1083, 1086 (9th Cir. 1985), cert. denied, 478 U.S.
of the Rules Governing Section 2254 Cases provides for
dismissal of a petition if it plainly appears from the
petition and any attached exhibits that the petitioner is not
entitled to relief. After reviewing the petition for habeas
corpus, the court finds that petitioner has failed to exhaust
state court remedies. The claims have not been presented to the
California Supreme Court and there is no allegation that
state court remedies are no longer available to petitioner.
Accordingly, the petition should be dismissed without
has also filed various letters with the court and appears to
seek an injunction “for [his] safety and health . . .
.” ECF No. 6 at 3; see also ECF No. 7.
However, he fails to meet the minimum threshold for merit to
satisfy the standard for a preliminary
injunction. At an irreducible minimum, he must
demonstrate that there is at least a fair chance of success
on the merits in this action. Johnson v. California State
Board of Accountancy, 72 F.3d 1427, 1430, 1433 (9th Cir.
1995); Sports Form, Inc. v. United Press
International, 686 F.2d 750, 753 (9th Cir. 1982). As
discussed above, his petition must be dismissed for failure
to exhaust, and thus, he has shown no likelihood of success
on the merits of any claim. Accordingly, the motion must be
also requests that the court appoint counsel. There currently
exists no absolute right to appointment of counsel in habeas
proceedings. See Nevius v. Sumner, 105 F.3d 453, 460
(9th Cir. 1996). The court may appoint counsel at any stage
of the proceedings “if the interests of justice so
require.” See 18 U.S.C. § 3006A; see
also, Rule 8(c), Rules Governing § 2254 Cases. The
court does not find that the interests of justice would be
served by the appointment of counsel at this stage of the
it is hereby ORDERED that:
Clerk is directed to randomly assign a United States District
Judge to this case; and
Petitioner's request for the appointment of counsel (ECF
Nos. 8 & 9) is denied. Further, it is hereby RECOMMENDED
Petitioner's application for a writ of habeas corpus be
dismissed for failure to exhaust state remedies;
Petitioner's request for injunctive relief (ECF No. 15)
be denied; and
Clerk be directed to serve a copy of any order adopting these
findings and recommendations together with a copy of the