Opinion
Case No.: 16-cv-1854-JAH-AGS
07-27-2017
Michael Sutton, Petitioner, v. William D. Gore, Warden, Respondent.
REPORT AND RECOMMENDATION TO GRANT WARDEN'S MOTION TO DISMISS (ECF No. 9)
Pro se petitioner Michael Sutton failed to provide evidence that he exhausted his claims despite an opportunity do so. For the following reasons, the Court recommends granting respondent's dismissal motion.
A federal court must "dismiss a petition for a writ of habeas corpus containing any claims that have not been exhausted in the state courts." Rose v. Lundy, 455 U.S. 509, 510 (1982); see also 28 U.S.C. § 2254(b)(1)(A). Adhering to this doctrine "protects the state court's role in the enforcement of federal law and prevents disruption of state judicial proceedings." Dixon v. Baker, 847 F.3d 714, 718 (9th Cir. 2017). Thus, this Court cannot hear unexhausted claims. Andrews v. Davis, 798 F.3d 759, 790 (9th Cir. 2015) (holding that a federal court may not grant habeas relief to state prisoners who have not properly exhausted their state court remedies).
Sutton has not exhausted any of his claims. In his initial filing, Sutton admits he failed to file a direct appeal or a habeas petition with any California state court. (ECF No. 1, at 15-19.) Sutton later amended his filing, stating he filed a habeas petition with each level of the California state courts until the petition was denied by the California Supreme Court for improper filing. (ECF No. 2, at 15-19.) But the California Supreme Court's website reveals no such proceedings. The Court ordered Sutton to provide evidence in support of his claim that he filed a state habeas petition, but he failed to do so.
As of July 27, 2017, a search of www.courts.ca.gov shows no filings from Sutton. --------
Thus, the Court recommends GRANTING defendant's dismissal motion and dismissing Sutton's petition. Upon being served with a copy of this report, the parties have 14 days to file any objections. Upon being served with any such objection, the party receiving it has 14 days to file any response. See Fed. R. Civ. P. 72(b)(2). Dated: July 27, 2017
/s/_________
Hon. Andrew G. Schopler
United States Magistrate Judge