United States District Court, E.D. California
FINDINGS AND RECOMMENDATION TO DISMISS PETITION FOR
WRIT OF HABEAS CORPUS WITHOUT PREJUDICE ORDER DIRECTING CLERK
OF COURT TO ASSIGN DISTRICT JUDGE
Abel Martinez is a state prisoner proceeding pro se
with a petition for writ of habeas corpus pursuant to 28
U.S.C. § 2254. Given that the instant petition is
unexhausted, the undersigned recommends dismissal of the
petition without prejudice.
17, 2019, Petitioner filed the instant federal habeas
petition in this Court challenging his 1998 Kern County
Superior Court conviction and sentence in light of new law,
citing to California Penal Code section 1170(d)(1). (ECF No.
1). On September 30, 2019,  the Court ordered Petitioner to
show cause why the petition should not be dismissed for
failure to exhaust state court remedies. (ECF No. 7). To
date, Petitioner has failed to file a response, and the time
for doing so has passed.
of the Rules Governing Section 2254 Cases requires
preliminary review of a habeas petition and allows a district
court to dismiss a petition before the respondent is ordered
to file a response, if it “plainly appears from the
petition and any attached exhibits that the petitioner is not
entitled to relief in the district court.” Rule 4,
Rules Governing Section 2254 Cases.
petitioner in state custody who is proceeding with a petition
for writ of habeas corpus must exhaust state judicial
remedies. 28 U.S.C. § 2254(b)(1). The exhaustion
doctrine is based on comity to the state court and gives the
state court the initial opportunity to correct the
state's alleged constitutional deprivations. Coleman
v. Thompson, 501 U.S. 722, 731 (1991); Rose v.
Lundy, 455 U.S. 509, 518 (1982). A petitioner can
satisfy the exhaustion requirement by providing the highest
state court with a full and fair opportunity to consider each
claim before presenting it to the federal court.
O'Sullivan v. Boerckel, 526 U.S. 838, 845
(1999); Duncan v. Henry, 513 U.S. 364, 365 (1995);
Picard v. Connor, 404 U.S. 270, 276 (1971).
it appears that Petitioner has only presented his claims to
the superior court and has not presented any claims to the
California Supreme Court. (ECF No. 1 at 6). It is possible
that Petitioner has presented all of his claims to the
California Supreme Court and failed to indicate this to the
Court. However, as Petitioner has not responded to the order
to show cause, it appears that Petitioner failed to exhaust
his claims in the petition. If Petitioner has not sought
relief in the California Supreme Court for the claims that he
raises in the instant petition, the Court cannot proceed to
the merits of those claims. 28 U.S.C. § 2254(b)(1).
the undersigned HEREBY RECOMMENDS that the petition for writ
of habeas corpus be DISMISSED WITHOUT PREJUDICE for
the Clerk of Court is DIRECTED to randomly assign a District
Court Judge to the present matter.
Findings and Recommendation is submitted to the assigned
United States District Court Judge, pursuant to the
provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of
the Local Rules of Practice for the United States District
Court, Eastern District of California. Within THIRTY
(30) days after service of the Findings and
Recommendation, Petitioner may file written objections with
the court and serve a copy on all parties. Such a document
should be captioned “Objections to Magistrate
Judge's Findings and Recommendation.” The assigned
United States District Court Judge will then review the
Magistrate Judge's ruling pursuant to 28 U.S.C. §
636(b)(1)(C). The parties are advised that failure to file
objections within the ...