(HC) Davis v. Sherman, No. 2:2017cv02026 - Document 18 (E.D. Cal. 2018)

Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Dennis M. Cota on 10/24/2018 RECOMMENDING that 14 Motion to Dismiss be granted. Referred to Judge Kimberly J. Mueller. Objections due within 14 days after being served with these findings and recommendations. (Huang, H)

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1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JOHN CARLISLE DAVIS, 12 No. 2:17-CV-2026-KJM-DMC-P Petitioner, 13 v. 14 STU SHERMAN, 15 FINDINGS AND RECOMMENDATIONS Respondent. 16 Petitioner, a state prisoner proceeding pro se, brings this petition for a writ of 17 18 habeas corpus pursuant to 28 U.S.C. § 2254. Pending before the court is respondent’s unopposed 19 motion to dismiss (Doc. 14) the petition for failure to exhaust state court remedies. 20 I. BACKGROUND 21 22 Petitioner challenges a prison disciplinary conviction which resulted in a loss of 23 credits. See Doc. 1, p. 2 (petition). Petitioner states that he sought and was denied relief at all 24 levels of the prison inmate appeals process. See id. at 5. Petitioner also states he did not file any 25 state court actions concerning the disciplinary conviction, nor that any such actions were pending 26 at the time his federal petition was filed. See id. at 5-6. 27 /// 28 /// 1 1 II. DISCUSSION 2 Respondent argues the petition should be dismissed because petitioner has failed to 3 meet his burden of establishing exhaustion of state court remedies. Under 28 U.S.C. § 2254(b), 4 the exhaustion of available state remedies is required before claims can be granted by the federal 5 court in a habeas corpus case. See Rose v. Lundy, 455 U.S. 509 (1982); see also Kelly v. Small, 6 315 F.3d 1063, 1066 (9th Cir. 2003); Hunt v. Pliler, 336 F.3d 839 (9th Cir. 2003).1 The 7 exhaustion doctrine is based on a policy of federal and state comity, designed to give state courts 8 the initial opportunity to correct alleged constitutional deprivations. See Picard v. Connor, 404 9 U.S. 270, 275 (1971); see also Rose, 455 U.S. at 518. “A petitioner may satisfy the exhaustion 10 requirement in two ways: (1) by providing the highest state court with an opportunity to rule on 11 the merits of the claim . . .; or (2) by showing that at the time the petitioner filed the habeas 12 petition in federal court no state remedies are available to the petitioner and the petitioner has not 13 deliberately by-passed the state remedies.” Batchelor v. Cupp , 693 F.2d 859, 862 (9th Cir. 1982) 14 (citations omitted). Exhaustion is not a jurisdictional requirement and the court may raise the 15 issue sua sponte. See Simmons v. Blodgett, 110 F.3d 39, 41 (9th Cir. 1997). 16 In this case, petitioner has failed to demonstrate exhaustion. In fact, based on the 17 statements contained in the petition, it is clear that petitioner has not presented his claims 18 regarding the prison disciplinary conviction to any state court, let alone the state’s highest court. 19 By not opposing respondent’s motion, petitioner appears to concede the point. 20 /// 21 /// 22 /// 23 /// 24 /// 25 /// 26 /// 27 Claims may be denied on the merits notwithstanding lack of exhaustion. See 28 U.S.C. § 2254(b)(2). 2 1 28 1 2 3 III. CONCLUSION Based on the foregoing, the undersigned recommends that respondent’s unopposed motion to dismiss (Doc. 14) be granted. 4 These findings and recommendations are submitted to the United States District 5 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 14 days 6 after being served with these findings and recommendations, any party may file written objections 7 with the court. Responses to objections shall be filed within 14 days after service of objections. 8 Failure to file objections within the specified time may waive the right to appeal. See Martinez v. 9 Ylst,951 F.2d 1153 (9th Cir. 1991). 10 11 12 Dated: October 24, 2018 ____________________________________ DENNIS M. COTA UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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