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Herndon v. State

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
Nov 24, 2015
No. 2:15-cv-2013 TLN KJN P (E.D. Cal. Nov. 24, 2015)

Opinion

No. 2:15-cv-2013 TLN KJN P

11-24-2015

GERROD HERNDON, Petitioner, v. STATE OF CALIFORNIA, Respondent.


ORDER AND FINDINGS AND RECOMMENDATIONS

Petitioner, a state prisoner proceeding pro se, 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. § 1915(a).

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).

A petition may be denied on the merits without exhaustion of state court remedies. 28 U.S.C. § 2254(b)(2).

After reviewing the petition for habeas corpus, the court finds that petitioner has failed to exhaust state court remedies. Petitioner states he was sentenced on June 18, 2015. (ECF No. 1 at 2.) The claims 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.

Pursuant to Rule 201 of the Federal Rules of Evidence, the Court has reviewed, and takes judicial notice of, the electronic dockets for the California Court of Appeal and the California Supreme Court. California Courts, < http://appellatecases.courtinfo.ca.gov >, visited November 18, 2015. Those judicially-noticed records show that petitioner has not filed any proceeding in the California Court of Appeal or the California Supreme. Thus, the court has confirmed that petitioner has not exhausted his state court remedies as to the 2015 conviction.

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 application for state post-conviction or other collateral review is pending. 28 U.S.C. § 2244(d). --------

Petitioner also mentions a desire to change his plea. Petitioner is advised that he may not seek to change his plea through a petition for writ of habeas corpus in federal court. Petitioner should consult with his defense counsel, or seek relief in the Sacramento County Superior Court.

Good cause appearing, IT IS HEREBY ORDERED that:

1. Petitioner is granted leave to proceed in forma pauperis;

2. The 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

IT IS HEREBY RECOMMENDED that petitioner's application for a writ of habeas corpus be dismissed for failure to exhaust state remedies.

These findings and recommendations will be submitted to the United States District Judge assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days after being served with these findings and recommendations, petitioner may file written objections with the court. The document should be captioned "Objections to Findings and Recommendations." Petitioner is 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). Dated: November 24, 2015

/s/_________

KENDALL J. NEWMAN

UNITED STATES MAGISTRATE JUDGE /hern2013.103


Summaries of

Herndon v. State

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
Nov 24, 2015
No. 2:15-cv-2013 TLN KJN P (E.D. Cal. Nov. 24, 2015)
Case details for

Herndon v. State

Case Details

Full title:GERROD HERNDON, Petitioner, v. STATE OF CALIFORNIA, Respondent.

Court:UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

Date published: Nov 24, 2015

Citations

No. 2:15-cv-2013 TLN KJN P (E.D. Cal. Nov. 24, 2015)