United States District Court, E.D. California
FINDINGS AND RECOMMENDATION TO DISMISS FIRST AMENDED
PETITION FOR WRIT OF HABEAS CORPUS (ECF No. 10)
Larry Jermaine Miles is a state prisoner proceeding pro
se with a petition for writ of habeas corpus pursuant to
28 U.S.C. § 2254. Given that the instant petition is
unexhausted, the undersigned recommends dismissal of the
petition without prejudice.
10, 2019, Petitioner filed the instant federal habeas
petition in the Sacramento Division of United States District
Court for the Eastern District of California. (ECF No. 1). On
June 13, 2019, the case was transferred to the Fresno
Division. (ECF No. 4). On June 14, 2019, the Court granted
Petitioner leave to file an amended petition that is signed
under penalty of perjury. (ECF No. 7). On July 3, 2019,
Petitioner filed a first amended petition
(“FAP”). (ECF No. 10). On July 11, 2019, the
Court ordered Petitioner to show cause why the FAP should not
be dismissed for failure to exhaust state court remedies.
(ECF No. 11). To date, Petitioner has failed to file a
response, and the time for doing so has passed.
of the Rules Governing Section 2254 Cases requires
preliminary review of a habeas petition and allows a district
court to dismiss a petition before the respondent is ordered
to file a response, if it “plainly appears from the
petition and any attached exhibits that the petitioner is not
entitled to relief in the district court.” Rule 4,
Rules Governing Section 2254 Cases.
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
it appears that Petitioner has not presented any claims to
the California Supreme Court. (ECF No. 10 at
5–6). It is possible that Petitioner has
presented all of his claims to the California Supreme Court
and failed to indicate this to the Court. However, as
Petitioner has not responded to the order to show cause, it
appears that Petitioner failed to exhaust his claims in the
FAP. 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 undersigned HEREBY RECOMMENDS that the first amended
petition for writ of habeas corpus (ECF No. 10) 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, Petitioner 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.” 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.
 Page numbers refer to the ECF page
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