United States District Court, E.D. California
FINDINGS AND RECOMMENDATION TO DISMISS WITHOUT
PREJUDICE THE PETITION FOR WRIT OF HABEAS CORPUS
is proceeding pro se with a petition for writ of habeas
corpus pursuant to 28 U.S.C. § 2254.
January 27, 2017, Petitioner filed the instant petition for
writ of habeas corpus challenging his conviction in the
Fresno County Superior Court for assault with a deadly
weapon. (ECF No. 1 at 1-2). On January 31, 2017, the Court
ordered Petitioner to show cause why the petition should not
be dismissed for failure to exhaust state judicial remedies.
(ECF No.4). On January 31, 2017, 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.”
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).
the petition states that Petitioner did not appeal his
conviction to the California Supreme Court or seek relief in
any other proceeding in the California Supreme Court. (ECF
No. 1 at 2-4). It is possible that, contrary to what is
stated in the petition, Petitioner presented all of his
claims to the California Supreme 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 petition. If Petitioner has not sought relief in the
California Supreme Court, the Court cannot proceed to the
merits of those claims. 28 U.S.C. § 2254(b)(1).
IT IS HEREBY RECOMMENDED that the petition for writ of habeas
corpus be DISMISSED WITHOUT PREJUDICE for failure to exhaust
state judicial remedies.
Findings and Recommendation is submitted to the United States
District Court Judge assigned to the case, 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,
Petitioner 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.” The assigned District
Judge will then review the Magistrate Judge's ruling
pursuant to 28 U.S.C. § 636(b)(1)(C). Petitioner is
advised that failure to file objections within the specified
time may result in the waiver of rights on appeal.
Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir.
2014) (citing Baxter v. Sullivan, 923 F.2d 1391,
1394 (9th Cir. 1991)).
 The Court notes that Petitioner has
not named a proper Respondent, such as the warden of the
facility in which he is held or the chief officer in charge
of state penal institutions. See Rule 2(a), Rules
Governing Section 2254 Cases; Rumsfeld v. Padilla,
542 U.S. 426, 435 (2004); Ortiz-Sandoval v. Gomez,
81 F.3d 891, 894 (9th Cir. 1996). The Court previously gave
Petitioner an opportunity to amend the name of Respondent,
but Petitioner failed to do so. ...