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1

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

ISRAEL BARAJAS

Petitioner, No. CIV S-04-2282 LKK CMK P

vs.

CALIFORNIA BOARD OF PRISON

TERMS

Respondent. FINDINGS & RECOMMENDATIONS

 /

Petitioner, a state prisoner proceeding pro se and in forma pauperis, has filed an

application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Currently before the court

is defendant’s motion to dismiss this action for failure to exhaust administrative remedies. 

The exhaustion of available state remedies is a prerequisite to a federal court's

consideration of claims sought to be presented in habeas corpus proceedings. See Rose v.

Lundy, 455 U.S. 509 (1982); 28 U.S.C. § 2254(b). A petitioner can satisfy the exhaustion

requirement by providing the highest state court with a full and fair opportunity to consider all

claims before presenting them to the federal court. Picard v. Connor, 404 U.S. 270, 276 (1971),

Middleton v. Cupp, 768 F.2d 1083, 1086 (9th Cir.), cert. denied, 478 U.S. 1021 (1986). 

///

///

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In support of defendant’s motion to dismiss, defendant notes that petitioner has

not presented his claims to the California Supreme Court. Instead, on his preprinted petition

form which asks for the history of petitioner’s habeas claims in state court, petitioner checked

the “No” box to indicate that he has neither pursued nor exhausted his state court remedies. (Pet.

at 3-4.) Defendants have included the results of a search of the California Appellate Court’s web

page, which includes a searchable database system of habeas petitions filed in the California

Supreme Court, that confirms that petitioner has failed to seek state review prior to filing his

federal habeas petition. (Def.’s Mot. to Dismiss, Ex. A.) Further, there is no allegation that state

court remedies are no longer available to petitioner. 

The court finds that petitioner has failed to exhaust state court remedies. 

Accordingly, IT IS HEREBY RECOMMENDED that petitioner's application for a writ of

habeas corpus be dismissed for failure to exhaust state remedies.

These findings and recommendations will be submitted to the United States

District Judge assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within

twenty days after being served with these findings and recommendations, any party may file

written objections with the court and serve a copy on all parties. Such a document should be

captioned “Objections to Findings and Recommendations.” Any reply to the objections shall be

served and filed within ten days after 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. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

DATED: February 22, 2006.

______________________________________

CRAIG M. KELLISON

UNITED STATES MAGISTRATE JUDGE

Case 2:04-cv-02282-LKK -CMK Document 15 Filed 02/23/06 Page 2 of 2