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7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9

10 STEVEN R.G. CANDLER, Case No. 1:24-cv-00981-SAB-HC

11 Petitioner, FINDINGS AND RECOMMENDATION TO DISMISS PETITION FOR WRIT OF 12 v. HABEAS CORPUS

13 JEFF MACOMBER, ORDER DIRECTING CLERK OF COURT TO RANDOMLY ASSIGN DISTRICT 14 Respondent. JUDGE

15 16 Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus 17 pursuant to

. 18 I. 19 BACKGROUND 20 On August 21, 2024, Petitioner filed the instant petition for writ of habeas corpus wherein 21 Petitioner challenges a Tulare County conviction. (ECF No. 1.) On August 22, 2024, the Court 22 ordered Petitioner to show cause why the petition should not be dismissed for failure to exhaust 23 state judicial remedies. (ECF No. 4.) On September 3 and 4, 2024, Petitioner filed responses to 24 the order to show cause. (ECF Nos. 6, 7.) 25 II. 26 DISCUSSION 27 Rule 4 of the Rules Governing Section 2254 Cases requires preliminary review of a habeas petition and allows a district court to dismiss a petition before the respondent is ordered 1 to file a response, if it “plainly appears from the petition and any attached exhibits that the 2 petitioner is not entitled to relief in the district court.” Rule 4, Rules Governing Section 2254 3 Cases in the United States District Courts, 28 U.S.C. foll. § 2254. 4 A petitioner in state custody who is proceeding with a petition for writ of habeas corpus 5 must exhaust state judicial remedies.

(b)(1). The exhaustion doctrine is based 6 on comity to the state court and gives the state court the initial opportunity to correct the state’s 7 alleged constitutional deprivations. Coleman v. Thompson,

(1991); Rose v. 8 Lundy,

(1982). A petitioner can satisfy the exhaustion requirement by 9 providing the highest state court with a full and fair opportunity to consider each claim before 10 presenting it to the federal court. O’Sullivan v. Boerckel,

(1999); Duncan v. 11 Henry,

(1995); Picard v. Connor,

(1971). 12 Here, the petition appears to indicate that Petitioner did not appeal from the conviction, 13 sentence, or commitment, did not seek review in the California Supreme Court, and did not file 14 any other petitions, applications, or motions. (ECF No. 1 at 8.1) In his response to the order to 15 show cause, Petitioner attaches a copy of a Tulare County Superior Court order denying his 16 petition for writ of habeas corpus. (ECF No. 7 at 6–8.) Although Petitioner may have sought 17 relief in the Tulare County Superior Court, Petitioner has failed to demonstrate that he presented 18 his claims to the California Supreme Court. As it appears Petitioner has not sought relief in the 19 California Supreme Court, the Court cannot proceed to the merits of his claims. 28 U.S.C. 20 § 2254(b)(1). Accordingly, the Court finds that Petitioner’s claims are unexhausted and should 21 be dismissed without prejudice. 22 III. 23 RECOMMENDATION & ORDER 24 Based on the foregoing, the Court HEREBY RECOMMENDS that the petition for writ of 25 habeas corpus be DISMISSED without prejudice for failure to exhaust state judicial remedies. 26 Further, the Clerk of Court is DIRECTED to randomly assign this action to a District 27 Judge. 1 This Findings and Recommendation is submitted to the United States District Court 2 | Judge assigned to the case, pursuant to the provisions of

(b)(1)(B) and Rule 304 3 | of the Local Rules of Practice for the United States District Court, Eastern District of California. 4 | Within THIRTY (30) days after service of the Findings and Recommendation, Petitioner may 5 | file written objections with the Court and serve a copy on all parties. Such a document should be 6 | captioned “Objections to Magistrate Judge’s Findings and Recommendation.” The assigned 7 | District Judge will then review the Magistrate Judge’s ruling pursuant to 28 U.S.C. 8 | § 636(b)(1)(C). Petitioner is advised that failure to file objections within the specified time may 9 | result in the waiver of rights on appeal. Wilkerson v. Wheeler,

(9th Cir. 2014) 10 | (citing Baxter v. Sullivan,

(9th Cir. 1991)). 11 0 IT IS SO ORDERED. FA. ee 13 | Dated: _ September 30, 2024

14 UNITED STATES MAGISTRATE JUDGE

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