1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 RAVINESH SINGH, No. 2:19-cv-01550 MCE GGH P 12 Petitioner, 13 v. ORDER AND FINDINGS AND

RECOMMENDATIONS

14 SCOTT FARENHEIM, Warden, 15 Respondent. 16 17 Petitioner, a state prisoner proceeding pro se, filed a petition for a writ of habeas corpus 18 pursuant to 28 U.S.C. § 2254. The matter was referred to the United States Magistrate Judge 19 pursuant to 28 U.S.C. §636(b)(1) and Local Rule 302(c). 20 On October 16, 2019, petitioner filed a motion seeking appointment of counsel and a stay 21 of the pending habeas proceedings. ECF No. 8. However, upon review of petitioner’s motion, it 22 appears the pending habeas petition is premature because state court proceedings have not yet 23 been finalized. In support of his motion to stay, petitioner states there is a pending state court 24 resentencing hearing set for October 25, 2019 pursuant to a remand by the California Supreme 25 Court. ECF No. 8 at 1-2. 26 The exhaustion of state court remedies is a prerequisite to the granting of a petition for 27 writ of habeas corpus. 28 U.S.C. § 2254(b)(1). If exhaustion is to be waived, it must be waived 28 explicitly by respondent’s counsel. 28 U.S.C. § 2254(b)(3). A waiver of exhaustion, thus, may 1 not be implied or inferred. A petitioner satisfies the exhaustion requirement by providing the 2 highest state court with a full and fair opportunity to consider all claims before presenting them to 3 the federal court. Picard v. Connor, 404 U.S. 270, 276 (1971); Middleton v. Cupp, 768 F.2d 4 1083, 1086 (9th Cir. 1985), cert. denied, 478 U.S. 1021 (1986). Here, the petition is premature 5 because petitioner has not been resentenced and accordingly has not exhausted his state court 6 remedies until the finalization of his judgment and conviction by the state court. See Sherwood v. 7 Tomkins, 716 F.2d 632, 634 (9th Cir. 1983) (“When, as in the present case, an appeal of a state 8 criminal conviction is pending, a would-be habeas corpus petitioner must await the outcome of 9 his appeal before his state remedies are exhausted, even where the issue to be challenged in the 10 writ of habeas corpus has been finally settled in the state courts.”) 11 Moreover, a stay and abeyance is unnecessary at this juncture considering that the statute 12 of limitations will not begin to run until the state court has issued an amended judgment and 13 petitioner’s conviction is final. See United States v. LaFromboise, 427 F.3d 680, 683-685 (9th 14 Cir. 2005). Accordingly, the undersigned will recommend that the motion to stay the pending 15 habeas proceedings be denied. 16 In addition, the undersigned will deny the petitioner’s request for an appointment of 17 counsel. There currently exists no absolute right to appointment of counsel in habeas 18 proceedings. See Nevius v. Sumner, 105 F.3d 453, 460 (9th Cir. 1996). However, 18 U.S.C. § 19 3006A authorizes the appointment of counsel at any stage of the case “if the interests of justice so 20 require.” See Rule 8(c), Fed. R. Governing § 2254 Cases. In the present case, the court does not 21 find that the interests of justice would be served by the appointment of counsel at the present 22 time. 23 In accordance with the above, IT IS HEREBY ORDERED that: 24 1. The motion for appointment of counsel (ECF No. 8) is denied; 25 2. The court’s deadlines set forth in its September 11, 2019 order (ECF No. 5) are hereby 26 vacated pending resolution of these findings and recommendations; and 27 3. Petitioner shall inform this court, within thirty days, of the result of any resentencing 28 proceedings, and whether he will be appealing any such result. 1 Further, IT IS HEREBY RECOMMENDED that: 2 1. The motion to stay (ECF No. 8) be denied; and 3 2. The petition for writ of habeas corpus be dismissed without prejudice as premature. 4 These findings and recommendations are submitted to the United States District Judge 5 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty-one days 6 after being served with these findings and recommendations, any party may file written 7 objections with the court and serve a copy on all parties. Such a document should be captioned 8 “Objections to Magistrate Judge's Findings and Recommendations.” Any reply to the objections 9 shall be served and filed within fourteen days after service of the objections. The parties are 10 advised that failure to file objections within the specified time may waive the right to appeal the 11 District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 12 Dated: October 21, 2019 13 14 /s/ Gregory G. Hollows

UNITED STATES MAGISTRATE JUDGE

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