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 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, arguing that Petitioner's claims fall outside
the core of habeas relief and that the petition is
unexhausted. (ECF No. 25). Petitioner did not oppose the
motion to dismiss, and the undersigned issued findings and
recommendation to dismiss the petition for failure to exhaust
on June 27, 2017. (ECF No. 26).
objections to the findings and recommendation, Petitioner
asserts that he filed state habeas petitions in the Kern
County Superior Court, California Court of Appeals, Fifth
Appellate District, and the California Supreme Court. (ECF
No. 27). On August 16, 2017, the undersigned vacated the
findings and recommendation. (ECF No. 29). The parties have
filed supplements with respect to the issue of exhaustion.
(ECF Nos. 30, 33).
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).
supplemented record before the Court establishes that on
March 17, 2017, Petitioner filed a state habeas petition in
the California Court of Appeal, Fifth Appellate District.
(ECF No. 30-2 at 2). On May 4, 2017, the California Court of
Appeal denied the petition on the basis that “petitions
should be first filed with the superior court which has
original jurisdiction before they can be heard by an
appellate court, unless there are exceptional circumstances
present.” (ECF No. 30-3 at 2). Additionally, on March
16, 2017, Petitioner filed a state habeas petition in the
California Supreme Court. (ECF No. 30-4 at 2). On May 10,
2017, the California Supreme Court denied the petition with
citation to In re Dexter, 25 Cal.3d 921, 925-26
(Cal. 1979). (ECF No. 30-5 at 2). The pages cited by the
California Supreme Court provide that “[a]s a general
rule, a litigant will not be afforded judicial relief unless
he has exhausted available administrative remedies, ”
and that “[t]he requirement that administrative
remedies be exhausted ‘applies to grievances lodged by
prisoners.'” Dexter, 25 Cal.3d at 925
Ninth Circuit has held that “[f]or the purposes of the
exhaustion doctrine . . . [i]f 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.”
Harris v. Superior Court, 500 F.3d 1124, 1128 (9th
Cir. 1974) (en banc). District courts have regularly held
that if the California Supreme Court denied a petition with
citation to Dexter, as in the instant case, the
petitioner has not exhausted state judicial remedies.
See, e.g., Herrera v. Gipson, No.
2:12-cv-2982 TLN DAD P, 2014 WL 5463978, at *2 (E.D. Cal.
Oct. 27, 2014) (collecting cases).
has not provided the California Supreme Court with a full and
fair opportunity to consider each claim before presenting it
to the federal court. Therefore, the petition is unexhausted,
and the Court cannot proceed to the merits of those claims.
28 U.S.C. § 2254(b)(1). Accordingly, dismissal is
warranted on this ground.
on the foregoing, the undersigned HEREBY RECOMMENDS that:
1. Respondent's motion to dismiss (ECF No. 25) be
2. The petition for writ of habeas corpus be 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