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REPORT AND RECOMMENDATION

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UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT TACOMA

KEVIN LAWRENCE HENDRICKSON,

Petitioner,

v.

ALICE PAYNE,

Respondent.

Case No. C06-5331 RBL/KLS

REPORT AND

RECOMMENDATION

NOTED FOR:

August 25, 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 United States Magistrate Judge Karen L. Strombom pursuant

to Title 28 U.S.C. § 636 (b) (1) and Local MJR 3 and 4. Petitioner has been granted leave to

proceed in forma pauperis. (Dkt. #3). Petitioner seeks to challenge a February 2006 conviction

and sentence. (Dkt. # 1). On July 3, 2006, the court ordered petitioner to show cause why his

petition should not be dismissed because it appeared his claim appeared unexhausted. (Dkt. # 6). 

Petitioner’s timely response to the court’s show cause order is now before the court. (Dkt. #7). 

Upon review, it is the court’s recommendation that the petition should be dismissed without

prejudice because petitioner has failed to properly exhaust his state court remedies.

DISCUSSION

In order for a federal district court to review the merits of a § 2254 petition, the petitioner

must first exhaust his state court remedies. 28 U.S.C. § 2254(b)(1)(A); Fields v. Waddington, 401

F.3d 1018, 1020 (9th Cir. 2005). A petitioner can satisfy the exhaustion requirement by either (1)

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REPORT AND RECOMMENDATION

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fairly and fully presenting each of his federal claims to the state’s highest court, or (2) demonstrating

that no state remedies are available to him. Johnson v. Zenon, 88 F.3d 828, 829 (9th Cir. 1996)

(internal citations omitted). Thus, “a would-be habeas corpus petitioner must await the outcome of

his [state court] appeal before his state remedies are exhausted.” Sherwood v. Tomkins, 716 F.2d

632, 634 (9th Cir. 1983).

In this case, the record indicates that a direct appeal of petitioner’s state court sentence is

currently pending in the Washington Court of Appeals Division II. (Dkt. # 7-1, p. 11). Petitioner’s

state court remedies are therefore 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 and Recommendation 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 August 25,

2006 as noted in the caption. 

DATED this 2nd day of August, 2006.

A

Karen L. Strombom

United States Magistrate Judge

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