United States District Court, E.D. California
ORDER AND FINDINGS AND RECOMMENDATIONS
KENDALL J. NEWMAN UNITED STATES MAGISTRATE JUDGE.
presently housed in the Sacramento County Jail and proceeding
pro se, has filed an application for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254, together with a request to
proceed in forma pauperis pursuant to 28 U.S.C. § 1915.
Petitioner submitted a declaration that makes the showing
required by § 1915(a). Accordingly, the request to
proceed in forma pauperis is granted. 28 U.S.C. §
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.
reviewing the petition for habeas corpus, the court finds
that petitioner has failed to exhaust state court remedies.
Petitioner was convicted on October 15, 2019. People v.
Rodrick Harris, No. 19FE018104 (Sacramento County
Superior Court) (ECF No. 1 at 2.) Petitioner confirms that he
did not file an appeal and did not check the box confirming
that he has sought review in the California Supreme Court.
(ECF No. 1 at 5.) The state appellate courts website reflects
no filing by petitioner challenging the 2019 conviction in
either the California Court of Appeal, Third Appellate
District, or the California Supreme Court. Thus,
petitioner's claims in his federal petition have not been
presented to the California Supreme Court. Further, there is
no allegation that state court remedies are no longer
available to petitioner. Accordingly, the petition should be
dismissed without prejudice.
cause appearing, IT IS HEREBY ORDERED that:
Petitioner is granted leave to proceed in forma pauperis;
Clerk of the Court is directed to serve a copy of these
findings and recommendations together with a copy of the
petition filed in the instant case on the Attorney General of
the State of California; and
HEREBY RECOMMENDED that petitioner's application for a
writ of habeas corpus be dismissed for failure to exhaust
findings and recommendations are submitted to the United
States District Judge assigned to the case, pursuant to the
provisions of 28 U.S.C. § 636(b)(1). Within fourteen
days after being served with these findings and
recommendations, any party 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 Recommendations.” If
petitioner files objections, he shall also address whether a
certificate of appealability should issue and, if so, why and
as to which issues. A certificate of appealability may issue
under 28 U.S.C. § 2253 “only if the applicant has
made a substantial showing of the denial of a constitutional
right.” 28 U.S.C. § 2253(c)(3). Any response to
the objections shall be served and filed within fourteen days
after service of the objections. The parties are advised that
failure to file objections within the specified time may
waive the right to appeal the District Court's order.
Martinez v. Ylst 951 F.2d 1153 (9th Cir. 1991).
 A petition may be denied on the merits
without exhaustion of state court remedies. 28 U.S.C. §
 The court may take judicial notice of
facts that are “not subject to reasonable dispute
because it . . . can be accurately and readily determined
from sources whose accuracy cannot reasonably be questioned,
” Fed.R.Evid. 201(b), including undisputed information
posted on official websites. Daniels-Hall v. National
Education Association, 629 F.3d 992, 999 (9th Cir.
2010). It is appropriate to take judicial notice of the
docket sheet of a California court. White v. Martel,
601 F.3d 882, 885 (9th Cir. 2010). The address of the
official website of the California state courts is
 Petitioner is cautioned that the
habeas corpus statute imposes a one year statute of
limitations for filing non-capital habeas corpus petitions in
federal court. In most cases, the one year period will start
to run on the date on which the state court judgment became
final by the conclusion of direct review or the expiration of
time for seeking direct review, although the statute of
limitations is tolled while a properly filed ...