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