1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10

11 ALPHONSO COLLINS, ) Case No.: 1:21-cv-01585-JLT (HC) ) 12 Petitioner, ) ORDER DIRECTING CLERK OF COURT TO ) ASSIGN DISTRICT JUDGE 13 v. ) ) FINDINGS AND RECOMMENDATIONS TO 14 DAVE CLARK, Warden, ) DISMISS UNEXHAUSTED PETITION WITHOUT

15 Respondent. ) PREJUDICE ) 16 ) [THIRTY-DAY OBJECTION DEADLINE]

17 Petitioner filed a Petition for Writ of Habeas Corpus on October 27, 2021. (Doc. 1.) Because 18 the petition appears to be unexhausted, the Court will recommend it be SUMMARILY DISMISSED 19 without prejudice. 20 DISCUSSION 21 A. Preliminary Review of Petition 22 Rule 4 of the Rules Governing Section 2254 Cases requires the Court to make a preliminary 23 review of each petition for writ of habeas corpus. The Court must summarily dismiss a petition “[i]f it 24 plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in 25 the district court. . .” Rule 4; O’Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 1990). The Advisory 26 Committee Notes to Rule 8 indicate that the Court may dismiss a petition for writ of habeas corpus, 27 either on its own motion under Rule 4, pursuant to the respondent’s motion to dismiss, or after an 28 answer to the petition has been filed. 1 B. Exhaustion 2 A petitioner who is in state custody and wishes to collaterally challenge his conviction by a 3 petition for writ of habeas corpus must exhaust state judicial remedies. 28 U.S.C. § 2254(b)(1). The 4 exhaustion doctrine is based on comity to the state court and gives the state court the initial 5 opportunity to correct the state’s alleged constitutional deprivations. Coleman v. Thompson, 501 U.S. 6 722, 731 (1991); Rose v. Lundy, 455 U.S. 509, 518 (1982). 7 A petitioner can satisfy the exhaustion requirement by providing the highest state court with a 8 full and fair opportunity to consider each claim before presenting it to the federal court. Duncan v. 9 Henry, 513 U.S. 364, 365 (1995). A federal court will find that the highest state court was given a full 10 and fair opportunity to hear a claim if the petitioner has presented the highest state court with the 11 claim’s factual and legal basis. Duncan, 513 U.S. at 365 (legal basis); Kenney v. Tamayo-Reyes, 504 12 U.S. 1, 112 S.Ct. 1715, 1719 (1992) (factual basis). 13 Additionally, the petitioner must have specifically told the state court that he was raising a 14 federal constitutional claim. Duncan, 513 U.S. at 365-66. In Duncan, the United States Supreme 15 Court reiterated the rule as follows: 16 In Picard v. Connor, 404 U.S. 270, 275 . . . (1971), we said that exhaustion of state remedies requires that petitioners “fairly present” federal claims to the state courts in 17 order to give the State the “opportunity to pass upon and correct alleged violations of the prisoners’ federal rights” (some internal quotation marks omitted). If state courts are to 18 be given the opportunity to correct alleged violations of prisoners’ federal rights, they must surely be alerted to the fact that the prisoners are asserting claims under the United 19 States Constitution. If a habeas petitioner wishes to claim that an evidentiary ruling at a state court trial denied him the due process of law guaranteed by the Fourteenth 20 Amendment, he must say so, not only in federal court, but in state court. 21 Duncan, 513 U.S. at 365-366. The Ninth Circuit examined the rule further, stating:

22 Our rule is that a state prisoner has not “fairly presented” (and thus exhausted) his federal claims in state court unless he specifically indicated to that court that those claims were 23 based on federal law. See Shumway v. Payne, 223 F.3d 982, 987-88 (9th Cir. 2000). Since the Supreme Court’s decision in Duncan, this court has held that the petitioner 24 must make the federal basis of the claim explicit either by citing federal law or the decisions of federal courts, even if the federal basis is “self-evident," Gatlin v. Madding, 25 189 F.3d 882, 889 (9th Cir. 1999) (citing Anderson v. Harless, 459 U.S. 4, 7 . . . (1982)), or the underlying claim would be decided under state law on the same considerations that 26 would control resolution of the claim on federal grounds, see, e.g., Hiivala v. Wood, 195 F3d 1098, 1106-07 (9th Cir. 1999); Johnson v. Zenon, 88 F.3d 828, 830-31 (9th Cir. 27 1996); . . . .

28 In Johnson, we explained that the petitioner must alert the state court to the fact that the 1 relevant claim is a federal one without regard to how similar the state and federal standards for reviewing the claim may be or how obvious the violation of federal law is. 2

3 Lyons v. Crawford, 232 F.3d 666, 668-669 (9th Cir. 2000) (italics added), as amended by Lyons v. 4 Crawford, 247 F.3d 904, 904-5 (9th Cir. 2001). 5 Petitioner indicates that he did not appeal from the judgment of conviction and did not appeal 6 to the highest state court. (Doc. 1 at 1-3.) Because it appears Petitioner has not presented his claims 7 to the California Supreme Court, the Court must dismiss the petition. Raspberry v. Garcia, 448 F.3d 8 1150, 1154 (9th Cir. 2006); Jiminez v. Rice, 276 F.3d 478, 481 (9th Cir. 2001). The Court cannot 9 consider a petition that is unexhausted. Rose v. Lundy, 455 U.S. 509, 521-22 (1982). 10 ORDER 11 The Court DIRECTS the Clerk of Court to assign a district judge to the case. 12 RECOMMENDATION 13 Accordingly, the Court RECOMMENDS that the habeas corpus petition be SUMMARILY 14 DISMISSED without prejudice for lack of jurisdiction. 15 These Findings and Recommendations are submitted to the United States District Court Judge 16 assigned to this case, pursuant to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of the 17 Local Rules of Practice for the United States District Court, Eastern District of California. Within 18 thirty days after being served with a copy, Petitioner may file written objections with the Court. Such 19 a document should be captioned “Objections to Magistrate Judge’s Findings and Recommendations.” 20 The Court will then review the Magistrate Judge’s ruling pursuant to 28 U.S.C. § 636 (b)(1)(C). 21 Failure to file objections within the specified time may waive the right to appeal the District Court’s 22 order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 23 24 IT IS SO ORDERED.

25 Dated: October 29, 2021 _ /s/ Jennifer L. Thurston 26 CHIEF UNITED STATES MAGISTRATE JUDGE

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