United States District Court, E.D. California
FINDINGS & RECOMMENDATIONS
KENDALL J. NEWMAN, UNITED STATES MAGISTRATE JUDGE
is a state prisoner, proceeding without counsel, with a
petition for writ of habeas corpus pursuant to 28 U.S.C.
§ 2254. Petitioner challenges a 2014 prison disciplinary
conviction for failing to obey an order. Pending before the
court is respondent's motion to dismiss on grounds that
petitioner's claims are not exhausted and procedurally
defaulted. (ECF No. 11.) For the reasons stated herein, the
undersigned recommends that respondent's motion be
argues that petitioner's claims are not exhausted and
procedurally defaulted because the California Supreme Court
denied petitioner's state habeas petition by citing
In re Dexter, 25 Cal.3d 921, 925-26 (1979).
(See ECF No. 11-1 at 71.) Dexter stands for
the proposition that a state habeas petitioner “will
not be afforded judicial relief unless he has exhausted
administrative remedies.” Id. at 925.
of State Court Remedies
in state custody who wish to challenge collaterally in
federal habeas proceedings either the fact or length of their
confinement are first required to exhaust state judicial
remedies, either on direct appeal or through collateral
proceedings, by presenting the highest state court available
with a fair opportunity to rule on the merits of each and
every claim they seek to raise in federal court. See
28 U.S.C. § 2254(b), (c); Rose v. Lundy, 455
U.S. 509, 515-16 (1982).
In re Dexter, the California Supreme Court held that
the court will not afford a prisoner judicial relief unless
he has first exhausted available administrative remedies. 25
Cal.3d at 925. The California Supreme Court's citation to
In re Dexter demonstrates that the court did not
reach the merits of petitioner's claims because he failed
to exhaust his available administrative remedies. See
Harris v. Super. Ct., 500 F.2d 1124, 1128 (9th Cir.
1974) (en banc) (“If the denial of the habeas corpus
petition includes a citation of an authority which indicates
that the petition was procedurally deficient or if the
California Supreme Court so states explicitly, then the
available state remedies have not been exhausted as the
California Supreme Court has not been given the required fair
opportunity to correct the constitutional violation.”).
observed recently by the United States District Court for the
Northern District of California,
District courts in California have consistently held that if
the California Supreme Court denies a petition with a
citation to In re Dexter, the prisoner has not
exhausted state court remedies as required. See,
e.g., Riley v. Grounds, 2014 WL 988986 at
*4 (N.D. Cal. Mar. 10, 2014) (granting motion to dismiss
petition as unexhausted in light of California Supreme
Court's summary denial with a citation to In re
Dexter); Turner v. Director of CDC, 2014 WL
4458885 at *3 n. 2 (E.D. Cal. Sept. 10, 2014) (“[F]or
exhaustion purposes, the citation to Dexter alone is
sufficient, without the need to review the state petition, to
establish that the claims in the first amended petition were
never considered on their merits by the state court and,
thus, were not ‘fairly presented' within the
meaning of AEDPA.”); Dean v. Diaz, 2014 WL
1275706 at *5 (E.D. Cal. Mar. 26, 2014) (“This court
has regularly relied on a citation to Dexter to find that a
federal petition is unexhausted.”).
Stamos v. Davey, 2017 WL 412619 at * 1 (N.D. Cal.
Jan. 21, 2017.)
retained the ability to refile his state habeas petition
after exhausting his claims through the administrative
procedure but he filed his federal habeas petition instead.
Based on the California Supreme Court's citation to
In re Dexter, the undersigned finds that petitioner
has not exhausted his claims.
federal court will not review questions of federal law
decided by a state court if the decision also rests on a
state law ground that is independent of the federal question
and adequate to support the judgment. Coleman v.
Thompson, 501 U.S. 722, 729-30 (1991). In the context of
direct review by the United States Supreme Court, the
“independent and adequate state ground” doctrine