(HC) Kern v. Superior Court of CA, County of Sacramento

Opinion

JAMES CURTIS KERN, Case No. 2:24-cv-2432-DAD-JDP (P) Petitioner, v. FINDINGS AND RECOMMENDATIONS COUNTY OF SACRAMENTO, Respondent.

Petitioner, a state prisoner, brings this action under section 2254. In my previous screening order, I found that the petition appeared unexhausted, and offered petitioner an opportunity to amend and explain why his claims should still proceed. ECF No. 10. He has filed an amended petition that indicates that his claims are still pending in state court and, thus, unexhausted for the purposes of federal habeas review. I recommend that this action be dismissed without prejudice, but without leave to amend, so that petitioner may, if appropriate, raise his claims in a new suit when they are exhausted in state court. The petition is before me for preliminary review under Rule 4 of the Rules Governing Section 2254 Cases. Under Rule 4, the judge assigned to the habeas proceeding must examine the habeas petition and order a response to the petition unless it “plainly appears” that the petitioner is not entitled to relief. See Valdez v. Montgomery, 918 F.3d 687, 693 (9th Cir. 2019); Boyd v. Thompson, 147 F.3d 1124, 1127 (9th Cir. 1998). As before, the petition explicitly indicates that the claims being raised are still pending in state court and have not been presented and ruled upon by the California Supreme Court. ECF No. 11 at 2-3. A federal habeas claim must be exhausted by presentation to the highest state court. See Gatlin vy. Madding, 189 F.3d 882, 888 (9th Cir. 1999) (“To exhaust a habeas claim properly, a petitioner must present his claim to the state supreme court even if that court’s review is discretionary.”). Accordingly, I find that no further attempts to amend are warranted and I will recommend that this action be dismissed without prejudice as unexhausted. It is RECOMMENDED that the amended complaint, ECF No. 11, be DISMISSED without prejudice and without leave to amend. These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(). Within fourteen days of service of these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Any such document should be captioned “Objections to Magistrate Judge’s Findings and Recommendations,” and any response shall be served and filed within fourteen days of service of the objections. The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court’s order. See Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Yist, 951 F.2d 1153 (9th Cir. 1991). IT IS SO ORDERED. ( q Sty - Dated: _ May 16, 2025 ow—— JEREMY D,. PETERSON UNITED STATES MAGISTRATE JUDGE