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Dustin v. Pffeifer

United States District Court, E.D. California

July 6, 2017

DALE OWEN DUSTIN, Petitioner,
v.
C. PFFEIFER, Respondent.

          ORDER FINDINGS AND RECOMMENDATION TO GRANT RESPONDENT'S MOTION TO DISMISS AND TO DISMISS PETITION FOR WRIT OF HABEAS CORPUS (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. As the claims raised in the instant petition are unexhausted, the undersigned recommends granting Respondent's motion to dismiss and dismissing the petition.

         I. DISCUSSION

         On 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).[1] On May 19, 2017, Respondent filed a motion to dismiss. (ECF No. 25). Petitioner has not filed any opposition.

         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). 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).

         Here, 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.[2] See Lundy, 455 U.S. at 522.

         II. 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 be DISMISSED without prejudice for nonexhaustion.

         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 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)).

         IT IS SO ORDERED.

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Notes:

[1] Page numbers refer to the ECF page numbers stamped at the top of ...


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