Opinion
2:23-cv-00460-JDP (HC)
10-12-2023
ROBERT TAYLOR, Petitioner, v. DISTRICT ATTORNEY OFFICE, Respondent.
ORDER
JEREMY D. PETERSON UNITED STATES MAGISTRATE JUDGE
Petitioner, a detainee in the Sacramento County Jail proceeding without counsel, seeks a writ of habeas corpus under 28 U.S.C. § 2254. After reviewing the petition, I find that it fails to state a cognizable habeas claim. I will give him leave to amend. I will also grant his petition to proceed in forma pauperis. ECF No. 11.
The petition is before me for preliminary review under Rule 4 of the Rules Governing Section 2254 Cases. Under Rule 4, the judge assigned to the habeas proceeding must examine the habeas petition and order a response to the petition unless it “plainly appears” that the petitioner is not entitled to relief. See Valdez v. Montgomery, 918 F.3d 687, 693 (9th Cir. 2019); Boydv. Thompson, 147 F.3d 1124, 1127 (9th Cir. 1998).
It appears that petitioner's state conviction is not yet finalized. He states that he was “rearrested” in May 2022 and that the district attorney has failed to provide him with a timely preliminary hearing. ECF No. 10 at 3. There is no indication that petitioner has appealed or filed a state habeas petition challenging his conviction-if indeed he has been convicted. Thus, it appears that the claims are not ripe for federal habeas consideration.
I will give petitioner an opportunity to file an amended petition that explains the status of his conviction and whether he has exhausted any claims with the California Supreme Court.
It is ORDERED that:
1. Petitioner's application to proceed in forma pauperis, ECF No. 11, is GRANTED.
2. The Clerk of Court is directed to send petitioner a federal § 2254 habeas form.
3. Within thirty days of this order's entry, petitioner may file an amended habeas petition. If he does not, I will recommend this action be dismissed.
IT IS SO ORDERED.