Opinion
No. 2:16-cv-00448 AC P
03-24-2016
DAMON J. LYNCH, JR., Petitioner, v. STATE OF CALIFORNIA, Respondent.
ORDER and FINDINGS AND RECOMMENDATIONS
Petitioner, a state prisoner 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. This action is referred to the undersigned United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302(c).
Petitioner has submitted a declaration that makes the showing required by Section 1915. Accordingly, petitioner's request to proceed in forma pauperis will be granted. See 28 U.S.C. § 1915(a).
Review of the petition for habeas corpus reveals that petitioner failed to exhaust his state court remedies as to any of his claims. Petitioner has presented none of his claims to the California Supreme Court on direct or collateral review. This court's review of the dockets for the California Supreme Court and Courts of Appeal confirms this assessment.
This court may take judicial notice of its own records and the records of other courts. See United States v. Howard, 381 F.3d 873, 876 n.1 (9th Cir. 2004); United States v. Wilson, 631 F.2d 118, 119 (9th Cir. 1980); see also Fed. R. Evid. 201 (court may take judicial notice of facts that are capable of accurate determination by sources whose accuracy cannot reasonably be questioned).
The exhaustion of state court remedies is a prerequisite to granting a federal petition for writ of habeas corpus. See 28 U.S.C. § 2254(b)(1). A petitioner satisfies this exhaustion requirement by providing the highest state court (in this case, the California Supreme 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). Therefore, petitioner must exhaust his claims in the California Supreme Court before he can present them to this court. Accordingly, the petition should be dismissed without prejudice.
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 when 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. See 28 U.S.C. § 2244(d). --------
Good cause appearing, IT IS HEREBY ORDERED that:
1. Petitioner's request to proceed in forma pauperis, ECF No. 2, is granted; and
2. The Clerk of Court is directed to randomly assign a district judge to this action.
Additionally, IT IS HEREBY RECOMMENDED that petitioner's petition for a writ of habeas corpus be dismissed without prejudice for failure to exhaust state court 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: March 24, 2016
/s/_________
ALLISON CLAIRE
UNITED STATES MAGISTRATE JUDGE