1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JEREMY COLE DEHART, No. 1:23-cv-01716-SKO (HC) 12 Petitioner, ORDER DIRECTING CLERK OF COURT

TO ASSIGN DISTRICT JUDGE

13 v.

FINDINGS AND RECOMMENDATION

14 TO SUMMARILY DISMISS

FRESNO SUPERIOR COURT, UNEXHAUSTED PETITION

15 Respondent. [TWENTY-ONE DAY OBJECTION 16 DEADLINE] 17 18 Petitioner is a state prisoner proceeding pro se and in forma pauperis with a petition for 19 writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner filed the instant habeas petition on 20 December 13, 2023, challenging his 2020 conviction in Fresno County Superior Court of first 21 degree murder. Because the petition appears to be unexhausted, the Court will recommend it be 22 DISMISSED. 23 DISCUSSION 24 A. Preliminary Review of Petition 25 Rule 4 of the Rules Governing Section 2254 Cases allows a district court to dismiss a 26 petition if it “plainly appears from the petition and any attached exhibits that the petitioner is not 27 entitled to relief in the district court . . . .” Rule 4 of the Rules Governing Section 2254 Cases. 28 The Advisory Committee Notes to Rule 8 indicate that the court may dismiss a petition for writ of 1 habeas corpus, either on its own motion under Rule 4, pursuant to the respondent’s motion to 2 dismiss, or after an answer to the petition has been filed. Herbst v. Cook, 260 F.3d 1039 (9th Cir. 3 2001). 4 B. Exhaustion 5 A petitioner who is in state custody and wishes to collaterally challenge his conviction by 6 a petition for writ of habeas corpus must exhaust state judicial remedies. 28 U.S.C. § 2254(b)(1). 7 The exhaustion doctrine is based on comity to the state court and gives the state court the initial 8 opportunity to correct the state's alleged constitutional deprivations. Coleman v. Thompson, 501 9 U.S. 722, 731 (1991); Rose v. Lundy, 455 U.S. 509, 518 (1982). 10 A petitioner can satisfy the exhaustion requirement by providing the highest state court 11 with a full and fair opportunity to consider each claim before presenting it to the federal court. 12 Duncan v. Henry, 513 U.S. 364, 365 (1995). A federal court will find that the highest state court 13 was given a full and fair opportunity to hear a claim if the petitioner has presented the highest 14 state court with the claim's factual and legal basis. Duncan, 513 U.S. at 365 (legal basis); Kenney 15 v. Tamayo-Reyes, 504 U.S. 1, 112 S.Ct. 1715, 1719 (1992) (factual basis). 16 Additionally, the petitioner must have specifically told the state court that he was raising a 17 federal constitutional claim. Duncan, 513 U.S. at 365-66. In Duncan, the United States Supreme 18 Court reiterated the rule as follows:

19 In Picard v. Connor, 404 U.S. 270, 275 . . . (1971), we said that exhaustion of state remedies requires that petitioners “fairly presen[t]” federal claims to the state 20 courts in order to give the State the “opportunity to pass upon and correct alleged violations of the prisoners' federal rights” (some internal quotation marks omitted). 21 If state courts are to be given the opportunity to correct alleged violations of prisoners' federal rights, they must surely be alerted to the fact that the prisoners 22 are asserting claims under the United States Constitution. If a habeas petitioner wishes to claim that an evidentiary ruling at a state court trial denied him the due 23 process of law guaranteed by the Fourteenth Amendment, he must say so, not only in federal court, but in state court. 24 25 Duncan, 513 U.S. at 365-366. The Ninth Circuit examined the rule further, stating:

26 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 27 claims were 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 28 that the petitioner must make the federal basis of the claim explicit either by citing 1 federal law or the decisions of federal courts, even if the federal basis is “self- evident," Gatlin v. Madding, 189 F.3d 882, 889 (9th Cir. 1999) (citing Anderson v. 2 Harless, 459 U.S. 4, 7 . . . (1982), or the underlying claim would be decided under state law on the same considerations that would control resolution of the claim on 3 federal grounds. Hiivala v. Wood, 195 F3d 1098, 1106-07 (9th Cir. 1999); Johnson v. Zenon, 88 F.3d 828, 830-31 (9th Cir. 1996); . . . . 4 In Johnson, we explained that the petitioner must alert the state court to the fact 5 that the 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 6 federal law is. 7 Lyons v. Crawford, 232 F.3d 666, 668-669 (9th Cir. 2000) (italics added), as amended by Lyons 8 v. Crawford, 247 F.3d 904, 904-5 (9th Cir. 2001). 9 Petitioner indicates he has only sought relief in the Fresno County Superior Court. 10 Because Petitioner has not presented his claims for federal relief to the California Court of Appeal 11 and the California Supreme Court, the Court must dismiss the petition. Raspberry v. Garcia, 448 12 F.3d 1150, 1154 (9th Cir. 2006); Jiminez v. Rice, 276 F.3d 478, 481 (9th Cir. 2001). The Court 13 cannot consider a petition that is entirely unexhausted. Rose v. Lundy, 455 U.S. 509, 521-22 14 (1982). 15 ORDER 16 IT IS HEREBY ORDERED that the Clerk of Court is DIRECTED to assign a District 17 Judge to the case.

RECOMMENDATION

18 Accordingly, the Court HEREBY RECOMMENDS that the habeas corpus petition be 19 DISMISSED for lack of exhaustion WITHOUT PREJUDICE to refiling in the Federal Court 20 once exhaustion is complete. 21 This Findings and Recommendation is submitted to the United States District Court Judge 22 assigned to this case, pursuant to the provisions of 28 U.S.C. section 636 (b)(1)(B) and Rule 304 23 of the Local Rules of Practice for the United States District Court, Eastern District of California. 24 Within twenty-one (21) days after being served with a copy, Petitioner may file written objections 25 with the Court. Such a document should be captioned “Objections to Magistrate Judge’s Findings 26 and Recommendation.” The Court will then review the Magistrate Judge’s ruling pursuant to 28 27 ///// 28 1 U.S.C. § 636 (b)(1)(C). Failure to file objections within the specified time may waive the right to 2 appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 3 4 IT IS SO ORDERED.

5 Dated: December 18, 2023 /s/ Sheila K. Oberto . 6 UNITED STATES MAGISTRATE JUDGE

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