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Hill v. Kernan

United States District Court, E.D. California

May 1, 2018

CYMEYON HILL, Petitioner,
v.
SCOTT KERNAN, Respondent.

          ORDER AND FINDINGS AND RECOMMENDATIONS

          EDMUND F. BRENNAN UNITED STATES MAGISTRATE JUDGE

         Petitioner is civilly committed and in the custody of the California Department of Corrections and Rehabilitation.[1] 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.[2] ECF Nos. 1, 6, 8.

         Petitioner 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. 1.

         According to the petition, petitioner has not presented any of his grounds for relief to the California Supreme Court.[3]

         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). 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. 1021 (1986).

         Rule 4 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.[4] 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 prejudice.[5]

         Petitioner 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.[6] 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 denied.

         Petitioner 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 proceedings.

         Accordingly, it is hereby ORDERED that:

         1. The Clerk is directed to randomly assign a United States District Judge to this case; and

         2. Petitioner's request for the appointment of counsel (ECF Nos. 8 & 9) is denied. Further, it is hereby RECOMMENDED that:

         1. Petitioner's application for a writ of habeas corpus be dismissed for failure to exhaust state remedies;

         2. Petitioner's request for injunctive relief (ECF No. 15) be denied; and

         3. The Clerk be directed to serve a copy of any order adopting these findings and recommendations together with a copy of the petition ...


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