Opinion
2:24-cv-00266-RSM-TLF
04-18-2024
RIGOBERTO RODRIGUEZ-MACEDO, Petitioner, v. JASON BENNETT, Respondent.
Noted for: May 3, 2024
REPORT AND RECOMMENDATION
Theresa L. Fricke United States Magistrate Judge
This matter is before the Court on petitioner's failure to respond to the Court's order to show cause (“Order”). Dkt. 4. Petitioner is proceeding pro se and in forma pauperis in this matter, which has been referred to the undersigned Magistrate Judge. Mathews, Sec'y of H.E.W. v. Weber, 423 U.S. 261 (1976); 28 U.S.C. § 636(b)(1)(B); Local Rule MJR 4(a).
On February 27, 2024, petitioner filed a proposed habeas corpus petition pursuant to 28 U.S.C. § 2241 and an application to proceed in forma pauperis. Dkt. 1. Given the identified deficiencies in the proposed petition, namely that the petition was actually a collateral attack on a local state court judgment from Issaquah, King County, Washington, which should have been brought under 28 U.S.C. § 2254 and exhaustion of state remedies had not been shown, the Court did not grant petitioner's IFP application. Dkt. 4 at 2-3; see Dkt. 1-2, Proposed Habeas Corpus Petition; Dkt. 1-4, Affidavit in Support; Dkt. 1-3, Memorandum. Petitioner was given until April 11, 2024 to show cause why his petition should not be dismissed. Dkt. 4.
Petitioner has not filed a response to the Order.Therefore, the Court recommends dismissal of this action without prejudice. Picard v. Connor, 404 U.S. 270, 276 (1971) (if a petition for habeas corpus contains claims that are unexhausted, it is not cognizable in federal court); Cf. Casey v. Moore, 386 F.3d 896, 920 n. 26, 921 n.27 (9th Cir. 2004) (unexhausted claim may be dismissed if the state courts procedurally barred the claim).
Petitioner has filed a second motion to proceed IFP. Dkt. 6. It is identical to his original filings except that he now uses the correct IFP form.
The parties have fourteen (14) days from service of this Report and Recommendation to file written objections thereto. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see also Fed.R.Civ.P. 6. Failure to file objections will result in a waiver of those objections for purposes of appeal. Thomas v. Arn, 474 U.S. 140 (1985). Accommodating the time limit imposed by Fed.R.Civ.P. 72(b), the Clerk is directed set this matter for consideration on May 3, 2024, as noted in the caption.