Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Dustin v. Pffeiffer

United States District Court, E.D. California

June 27, 2017

DALE OWEN DUSTIN, Petitioner,
v.
PFFEIFFER, Respondent.

          FINDINGS AND RECOMMENDATION TO GRANT RESPONDENT'S MOTION TO DISMISS AND TO DISMISS PETITION WITHOUT PREJUDICE (ECF NO. 25)

         Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.

         I.

         BACKGROUND

         On September 13, 2016, Petitioner filed the instant federal petition for writ of habeas corpus was in the United States District Court for the Northern District of California. (ECF No. 1). On November 8, 2016, the petition was transferred to this Court. (ECF No. 6). In the petition, Petitioner appears to challenge a prison disciplinary proceeding (Log No. ASU1-15-08-001) on the grounds of due process, equal protection, and cruel and unusual punishment. (ECF No. 1 at 1, 5).[1] On May 15, 2017, Respondent filed a motion to dismiss. (ECF No. 25). Petitioner has not opposed the motion to dismiss.

         II.

         DISCUSSION

         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).

         In the petition, Petitioner states that he has not presented his claims to the California Supreme Court. (ECF No. 1 at 3). 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 motion to dismiss, 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 Petitioner's claim. 28 U.S.C. § 2254(b)(1). Accordingly, dismissal is warranted for failure to exhaust state court remedies.[2]

         III.

         RECOMMENDATION

         Accordingly, the undersigned HEREBY RECOMMENDS that:

1. Respondent's motion to dismiss (ECF No. 25) be GRANTED; and
2. The petition for writ of habeas corpus is DISMISSED WITHOUT PREJUDICE for failure to exhaust state court remedies.

         This 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 District 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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.