United States District Court, E.D. California
ORDER FINDINGS AND RECOMMENDATION TO GRANT
RESPONDENT'S MOTION TO DISMISS AND TO DISMISS PETITION
FOR WRIT OF HABEAS CORPUS (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. As the claims raised in the instant petition are
unexhausted, the undersigned recommends granting
Respondent's motion to dismiss and dismissing the
October 21, 2016, Petitioner filed the instant petition for
writ of habeas corpus in the United States District Court for
the Northern District of California. (ECF No. 1). On December
14, 2016, the petition was transferred to this Court. (ECF
No. 8). In the petition, Petitioner appears to challenge
multiple prison disciplinary proceedings in addition to
raising various issues pertaining to Petitioner's
confinement, such as being improperly transferred and not
having access to property. (ECF No. 1 at 2, 5). On May 19, 2017,
Respondent filed a motion to dismiss. (ECF No. 25).
Petitioner has not filed any opposition.
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). To
provide the highest state court the necessary opportunity,
the petitioner must “fairly present” the claim
with “reference to a specific federal constitutional
guarantee, as well as a statement of the facts that entitle
the petitioner to relief.” Duncan, 513 U.S. at
365; Gray v. Netherland, 518 U.S. 152, 162- 63
(1996). See also Davis v. Silva, 511 F.3d 1005, 1009
(9th Cir. 2008).
Petitioner states that he has not presented his claims to any
state court. (ECF No. 1 at 3-4). If Petitioner has not sought
relief in the California Supreme 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). The
Court must dismiss without prejudice a petition containing
unexhausted claims to give a petitioner an opportunity to
exhaust the claims if he can do so. See Lundy, 455 U.S.
the undersigned HEREBY RECOMMENDS that:
Respondent's motion to dismiss (ECF No. 25) be GRANTED;
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)).
 Page numbers refer to the ECF page
numbers stamped at the top of ...