United States District Court, E.D. California
VESTER L. PATTERSON, Petitioner,
HEDI LACKER, Respondent.
FINDINGS AND RECOMMENDATION RECOMMENDING DISMISSAL OF
PETITION FOR WRIT OF HABEAS CORPUS
is a state prisoner proceeding pro se with a petition for
writ of habeas corpus, wherein he challenges: (1) the
California Department of Corrections and
Rehabilitation’s policy that prevents two inmates from
marrying each other; and (2) a prison disciplinary proceeding
that resulted in the loss of good time credit. (ECF No. 1).
On June 3, 2016, the Court ordered Petitioner to show cause
why the petition should not be dismissed for nonexhaustion.
(ECF No. 9). On June 3, 2016, the order to show cause was
served on Petitioner and contained notice that a response
should be filed within thirty days of the date of service of
the order. Over thirty days have passed and Petitioner has
not responded to the Court’s order to show cause.
of the Rules Governing Section 2254 Cases requires
preliminary review of a habeas petition and allows a district
court to dismiss a petition before the respondent is ordered
to file a response, if it “plainly appears from the
petition and any attached exhibits that the petitioner is not
entitled to relief in the district court.” A petitioner
in state custody who is proceeding with a petition for writ
of habeas corpus must exhaust state judicial remedies. 28
U.S.C. § 2254(b)(1). The exhaustion doctrine is based on
comity to the state court and gives the state court the
initial opportunity to correct the state’s alleged
constitutional deprivations. Coleman v. Thompson,
501 U.S. 722, 731 (1991); Rose v. Lundy, 455 U.S.
509, 518 (1982). A petitioner can satisfy the exhaustion
requirement by providing the highest state court with a full
and fair opportunity to consider each claim before presenting
it to the federal court. O’Sullivan v.
Boerckel, 526 U.S. 838, 845 (1999); Duncan v.
Henry, 513 U.S. 364, 365 (1995); Picard v.
Connor, 404 U.S. 270, 276 (1971).
Petitioner has not sought relief in the California state
court for the claims that he raises in the instant petition,
the Court cannot proceed to the merits of those claims. 28
U.S.C. § 2254(b)(1). Here, Petitioner asserts that
administrative remedies have been exhausted, but there is no
indication that Petitioner has fairly presented his claims to
the state court. (ECF No. 1 at 5, 8). It is possible that
Petitioner presented his claims to the state court and failed
to indicate this to the Court. However, as Petitioner has not
responded to the order to show cause, it appears that
Petitioner failed to exhaust his claims in the instant
IT IS HEREBY RECOMMENDED that the petition for writ of habeas
corpus be DISMISSED WITHOUT PREJUDICE for nonexhaustion.
Findings and Recommendation is submitted to the assigned
United States District Court Judge, pursuant to the
provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of
the Local Rules of Practice for the United States District
Court, Eastern District of California. Within THIRTY (30)
days after service of the Findings and Recommendation, any
party may file written objections with the court and serve a
copy on all parties. Such a document should be captioned
“Objections to Magistrate Judge’s Findings and
Recommendation.” Replies to the objections shall be
served and filed within fourteen (14) days after service of
the objections. The assigned United States District Court
Judge will then review the Magistrate Judge’s ruling
pursuant to 28 U.S.C. § 636(b)(1)(C). The parties are
advised that failure to file objections within the specified
time may waive the right to appeal the District Court’s
order. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th
Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d
1391, 1394 (9th Cir. 1991)).