Sutton v. Gore
Filing
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REPORT AND RECOMMENDATION re 9 MOTION to Dismiss. Signed by Magistrate Judge Andrew G. Schopler on 7/27/2017.(All non-registered users served via U.S. Mail Service)(jpp)
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UNITED STATES DISTRICT COURT
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SOUTHERN DISTRICT OF CALIFORNIA
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Michael Sutton,
Case No.: 16-cv-1854-JAH-AGS
Petitioner,
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v.
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William D. Gore, Warden,
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REPORT AND RECOMMENDATION TO
GRANT WARDEN’S MOTION TO
DISMISS (ECF No. 9)
Respondent.
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Pro se petitioner Michael Sutton failed to provide evidence that he exhausted his
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claims despite an opportunity do so. For the following reasons, the Court recommends
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granting respondent’s dismissal motion.
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A federal court must “dismiss a petition for a writ of habeas corpus containing any
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claims that have not been exhausted in the state courts.” Rose v. Lundy, 455 U.S. 509, 510
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(1982); see also 28 U.S.C. § 2254(b)(1)(A). Adhering to this doctrine “protects the state
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court’s role in the enforcement of federal law and prevents disruption of state judicial
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proceedings.” Dixon v. Baker, 847 F.3d 714, 718 (9th Cir. 2017). Thus, this Court cannot
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hear unexhausted claims. Andrews v. Davis, 798 F.3d 759, 790 (9th Cir. 2015) (holding
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16-cv-1854-JAH-AGS
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that a federal court may not grant habeas relief to state prisoners who have not properly
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exhausted their state court remedies).
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Sutton has not exhausted any of his claims. In his initial filing, Sutton admits he
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failed to file a direct appeal or a habeas petition with any California state court. (ECF No. 1,
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at 15-19.) Sutton later amended his filing, stating he filed a habeas petition with each level
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of the California state courts until the petition was denied by the California Supreme Court
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for improper filing. (ECF No. 2, at 15-19.) But the California Supreme Court’s website
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reveals no such proceedings.1 The Court ordered Sutton to provide evidence in support of
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his claim that he filed a state habeas petition, but he failed to do so.
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Thus, the Court recommends GRANTING defendant’s dismissal motion and
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dismissing Sutton’s petition. Upon being served with a copy of this report, the parties have
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14 days to file any objections. Upon being served with any such objection, the party
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receiving it has 14 days to file any response. See Fed. R. Civ. P. 72(b)(2).
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Dated: July 27, 2017
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As of July 27, 2017, a search of www.courts.ca.gov shows no filings from Sutton.
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16-cv-1854-JAH-AGS
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