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REPORT AND RECOMMENDATION

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UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT TACOMA

STEVEN T. MILLER,

Petitioner,

v.

GARY FLEMING,

Respondent.

Case No. C05-5661FDB

REPORT AND

RECOMMENDATION

NOTED FOR:

April 7th, 2006

The petitioner in this action is seeking federal habeas corpus relief pursuant to 28 U.S.C. §

2254. This case has been referred to the undersigned Magistrate Judge pursuant to Title 28 U.S.C.

§§ 636 (b) (1) (A) and 636 (b) (1) (B) and Local Magistrates’ Rules MJR 3 and MJR 4.

The petitioner filed this petition and on the same day moved to stay the action as he is

currently in state court litigating issues related to his conviction in a personal restraint petition. (Dkt.

# 5 and 6). The court entered a show cause order and explained:

The Untied States Supreme Court has recently addressed the stay and

abeyance of habeas corpus petitions. Rhines v. Weber, ___ U.S. ___, 125 S. Ct.

1528. A district Court has discretion to stay a petition, but the courts discretion has

had limits placed on it by the passage of the Antiterrorism and Effective Death

Penalty Act, AEDPA. The stay and abeyance process should only be used when there

is good cause for not exhausting the issue prior to filing the petition.

Petitioner did not respond to the order to show cause and his motion was denied. The court

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REPORT AND RECOMMENDATION

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now has an unexhausted petition before it and the petition should be dismissed without prejudice to

allow petitioner the opportunity to exhaust in state court and then re-file if he is not time barred.

DISCUSSION

Exhaustion of State Remedies.

In order to satisfy the exhaustion requirement, petitioner’s claims must have been fairly

presented to the state's highest court. Picard v. Connor, 404 U.S. 270, 276 (1971); Middleton v.

Cupp, 768 F.2d 1083, 1086 (9th Cir. 1985). Petitioner still has claims in state court by his own

admission. (Dkt. # 5 and 6). A federal habeas petitioner must provide the state courts with a fair

opportunity to correct alleged violations of prisoners' federal rights. Duncan v. Henry, 513 U.S.364,

115 S.Ct. 887, 888 (1995). It is not enough that all the facts necessary to support the federal claim

were before the state courts or that a somewhat similar state law claim was made. Id, citing Picard

v. Connor, 404 U.S. 270 (1971) and Anderson v. Harless, 459 U.S. 4 (1982). The claims in this

petition are unexhausted. A federal court faced with an unexhausted petition dismisses the petition,

without prejudice, so that the petitioner has an opportunity to exhaust the claims in state court. Rose

v, Lundy, 455 U.S. 509, 522 (1982). Petitioner should be given that opportunity. 

CONCLUSION

Based on the foregoing discussion, the Court should DISMISS the petition WITHOUT

PREJUDICE. A proposed order accompanies this report and recommendation.

Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal rules of Civil Procedure, the

parties shall have ten (10) days from service of this Report to file written objections. See also Fed.

R. Civ. P. 6. Failure to file objections will result in a waiver of those objections for purposes of

appeal. Thomas v. Arn, 474 U.S. 140 (1985). Accommodating the time limit imposed by Rule

72(b), the clerk is directed to set the matter for consideration on April 7th, 2006 as noted in the

caption. 

DATED this 13th day of March, 2006.

/S/ J. Kelley Arnold

J. Kelley Arnold

United States Magistrate Judge

Case 3:05-cv-05661-FDB Document 9 Filed 03/13/06 Page 2 of 2