United States District Court, E.D. California
FINDINGS AND RECOMMENDATION TO GRANT RESPONDENT'S
MOTION TO DISMISS AND TO DISMISS PETITION WITHOUT PREJUDICE
(ECF NO. 25)
is a state prisoner proceeding pro se with a petition for
writ of habeas corpus pursuant to 28 U.S.C. § 2254.
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). On May 15, 2017, Respondent filed a motion
to dismiss. (ECF No. 25). Petitioner has not opposed the
motion to dismiss.
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).
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.
the undersigned HEREBY RECOMMENDS that:
1. Respondent's motion to dismiss (ECF No. 25) be
2. The petition for writ of habeas corpus is DISMISSED
WITHOUT PREJUDICE for failure to exhaust state court
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