(HC) Glave v. Horn

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 BEAU GLAVE, Case No. 1:25-cv-01253-SAB-HC 11 Petitioner, FINDINGS AND RECOMMENDATION TO DISMISS PETITION WITHOUT 12 v. PREJUDICE 13 P. HORN, et al., ORDER DIRECTING CLERK OF COURT TO RANDOMLY ASSIGN DISTRICT 14 Respondents. JUDGE 15 16 Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus 17 pursuant to 28 U.S.C. § 2254. 18 On September 22, 2025, Petitioner filed the instant petition for writ of habeas corpus. 19 (ECF No. 1.) On November 25, 2025, this Court ordered Petitioner to show cause why the 20 petition should not be dismissed for failure to exhaust state court remedies. (ECF No. 6.) To date, 21 no response has been filed, and the time for doing so has passed. 22 Rule 4 of the Rules Governing Section 2254 Cases requires preliminary review of a 23 habeas petition and allows a district court to dismiss a petition before the respondent is ordered 24 to file a response, if it “plainly appears from the petition and any attached exhibits that the 25 petitioner is not entitled to relief in the district court.” Rule 4, Rules Governing Section 2254 26 Cases in the United States District Courts, 28 U.S.C. foll. § 2254. 27 A petitioner in state custody who is proceeding with a petition for writ of habeas corpus must exhaust state judicial remedies. 28 U.S.C. § 2254(b)(1). The exhaustion doctrine is based 1 on comity to the state court and gives the state court the initial opportunity to correct the state’s 2 alleged constitutional deprivations. Coleman v. Thompson, 501 U.S. 722, 731 (1991); Rose v. 3 Lundy, 455 U.S. 509, 518 (1982). A petitioner can satisfy the exhaustion requirement by 4 providing the highest state court with a full and fair opportunity to consider each claim before 5 presenting it to the federal court. O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999); Duncan v. 6 Henry, 513 U.S. 364, 365 (1995); Picard v. Connor, 404 U.S. 270, 276 (1971). 7 If Petitioner has not sought relief in the California Supreme Court, the Court cannot 8 proceed to the merits of his claims. In the petition, Petitioner challenges a disciplinary 9 proceeding on various grounds. (ECF No. 1 at 3–6.1) The petition indicates that Petitioner 10 exhausted his administrative remedies, but that he has not filed any petitions, application, or 11 motions regarding this issue in any court. (Id. at 7.) It is possible that Petitioner presented his 12 claims to the California Supreme Court and failed to indicate this to the Court. However, 13 Petitioner has failed to file a response to the order to show cause. As it appears Petitioner has not 14 sought relief in the California Supreme Court, the petition is unexhausted and the Court cannot 15 proceed to the merits of his claims. 28 U.S.C. § 2254(b)(1). 16 Accordingly, the Court HEREBY RECOMMENDS that the petition for writ of habeas 17 corpus be DISMISSED without prejudice for failure to exhaust state judicial remedies. 18 Further, the Clerk of Court is DIRECTED to randomly assign this action to a District 19 Judge. 20 This Findings and Recommendation is submitted to the assigned United States District 21 Court Judge, pursuant to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of the Local 22 Rules of Practice for the United States District Court, Eastern District of California. Within 23 THIRTY (30) days after service of the Findings and Recommendation, Petitioner may file 24 written objections with the Court, limited to fifteen (15) pages in length, including any 25 exhibits. Such a document should be captioned “Objections to Magistrate Judge’s Findings and 26 Recommendation.” The assigned United States District Court Judge will then review the 27 Magistrate Judge’s ruling pursuant to 28 U.S.C. § 636(b)(1)(C). The parties are advised that 1 | failure to file objections within the specified time may waive the right to appeal the District 2 | Court’s order. Wilkerson _v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. 3 | Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 4 5 IT IS SO ORDERED. FA. Se 6 | Dated: _ January 23, 2026 STANLEY A. BOONE 7 United States Magistrate Judge 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28