Sutton v. Gore

Filing 24

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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 Michael Sutton, Case No.: 16-cv-1854-JAH-AGS Petitioner, 12 13 v. 14 William D. Gore, Warden, 15 REPORT AND RECOMMENDATION TO GRANT WARDEN’S MOTION TO DISMISS (ECF No. 9) Respondent. 16 17 18 Pro se petitioner Michael Sutton failed to provide evidence that he exhausted his 19 claims despite an opportunity do so. For the following reasons, the Court recommends 20 granting respondent’s dismissal motion. 21 A federal court must “dismiss a petition for a writ of habeas corpus containing any 22 claims that have not been exhausted in the state courts.” Rose v. Lundy, 455 U.S. 509, 510 23 (1982); see also 28 U.S.C. § 2254(b)(1)(A). Adhering to this doctrine “protects the state 24 court’s role in the enforcement of federal law and prevents disruption of state judicial 25 proceedings.” Dixon v. Baker, 847 F.3d 714, 718 (9th Cir. 2017). Thus, this Court cannot 26 hear unexhausted claims. Andrews v. Davis, 798 F.3d 759, 790 (9th Cir. 2015) (holding 27 28 1 16-cv-1854-JAH-AGS 1 that a federal court may not grant habeas relief to state prisoners who have not properly 2 exhausted their state court remedies). 3 Sutton has not exhausted any of his claims. In his initial filing, Sutton admits he 4 failed to file a direct appeal or a habeas petition with any California state court. (ECF No. 1, 5 at 15-19.) Sutton later amended his filing, stating he filed a habeas petition with each level 6 of the California state courts until the petition was denied by the California Supreme Court 7 for improper filing. (ECF No. 2, at 15-19.) But the California Supreme Court’s website 8 reveals no such proceedings.1 The Court ordered Sutton to provide evidence in support of 9 his claim that he filed a state habeas petition, but he failed to do so. 10 Thus, the Court recommends GRANTING defendant’s dismissal motion and 11 dismissing Sutton’s petition. Upon being served with a copy of this report, the parties have 12 14 days to file any objections. Upon being served with any such objection, the party 13 receiving it has 14 days to file any response. See Fed. R. Civ. P. 72(b)(2). 14 Dated: July 27, 2017 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 As of July 27, 2017, a search of shows no filings from Sutton. 2 16-cv-1854-JAH-AGS

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