United States District Court, E.D. California
ORDER AND FINDINGS AND RECOMMENDATIONS
DEBORAH BARNES UNITED STATES MAGISTRATE JUDGE.
a state prisoner proceeding pro se, has filed an application
for a writ of habeas corpus pursuant to 28 U.S.C. §
2254. Petitioner claims newly discovered evidence shows that
he is innocent, and the district attorney withheld
exculpatory evidence. Presently before the court is the
petition for screening (ECF No. 2), petitioner's motions
to proceed in forma pauperis (ECF No. 8) and for the
appointment of counsel (ECF No. 7), as well as his request
for an evidentiary hearing (ECF No. 7). For the reasons set
forth below, the court will deny petitioner's motion to
proceed in forma pauperis, his motion to appoint counsel, and
his request for an evidentiary hearing and will recommend
that the petition be dismissed.
has filed a motion to proceed in forma pauperis (ECF No. 8).
However, court records reflect that petitioner paid the
filing fee on May 17, 2019. Accordingly, the court will deny
as moot petitioner's motion to proceed in forma pauperis.
Rule 4 of the Rules Governing Section 2254 Cases, this court
is required to conduct a preliminary review of all petitions
for writ of habeas corpus filed by state prisoners. Pursuant
to Rule 4, this court must summarily dismiss a petition if it
“plainly appears from the petition and any attached
exhibits that the petitioner is not entitled to relief in the
action was initiated when plaintiff filed a petition for writ
of habeas corpus in the United States Court of Appeals for
the Ninth Circuit. (ECF No. 2.) Upon receipt, the Ninth
Circuit transferred this action to the Eastern District of
California pursuant to Federal Rule of Appellate Procedure
22(a). (ECF No. 1.)
has set forth the following details regarding the criminal
charges at issue in his petition: in October 2015, he and his
girlfriend, Ms. Hayes, had an argument. (ECF No. 2 at 8.)
After he left the residence, police arrived and Hayes told
the officers petitioner physically assaulted her and stole
her cell phone. When petitioner returned Hayes did not inform
him that she spoke to the police. Three months later
petitioner was pulled over for a seatbelt violation and
arrested for an outstanding warrant. Soon after
petitioner's arrest, Hayes told the Shasta County
District Attorney that everything she told the police had
been a lie. Hayes testified at a pre-trial hearing that she
lied to police. Hayes was then advised that lying to the
police was a crime. Thereafter, Hayes invoked her right to
remain silent under the Fifth Amendment. Because the state
did not have a full opportunity to cross-examine Hayes, the
court struck her testimony.
states he pled nolo contendere to second degree robbery in
the Shasta County Superior Court on June 6, 2016. (ECF No. 2
at 2.) Petitioner also pled no contest to an unrelated child
abuse charge, having a prior strike, and violating the terms
of probation in several other cases. (ECF No. 2 at 33.)
Petitioner indicates that following his conviction he
appealed his conviction in the Shasta County Superior Court.
He indicates that he did not seek review in the California
Supreme Court and he did not file any other petitions,
applications, or motions related to his conviction. (ECF No.
2 at 6.)
argues he is entitled to relief under California Penal Code
§ 1473 because Hayes has submitted an affidavit
to an investigator hired by petitioner's mother stating
that she lied to police and petitioner did not assault her or
steal her cell phone.
is no question that 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). “Under the
exhaustion requirement, a habeas petitioner challenging a
state conviction must first attempt to present his claim in
state court.” Harrington v. Richter, 562 U.S.
86, 103 (2011); see also O'Sullivan v. Boerckel,
526 U.S. 838, 845 (1999) (“the exhaustion doctrine is
designed to give the state courts a full and fair opportunity
to resolve federal constitutional claims before those claims
are presented to the federal courts”). 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). For a
California prisoner to exhaust, he must present his claims to