1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JAMES CURTIS KERN, Case No. 2:24-cv-2432-DAD-JDP (P) 12 Petitioner, 13 v. FINDINGS AND RECOMMENDATIONS 14 SUPERIOR COURT OF CALIFORNIA

COUNTY OF SACRAMENTO,

15 Respondent. 16

17 18 Petitioner, a state prisoner, brings this action under section 2254. In my previous 19 screening order, I found that the petition appeared unexhausted, and offered petitioner an 20 opportunity to amend and explain why his claims should still proceed. ECF No. 10. He has filed 21 an amended petition that indicates that his claims are still pending in state court and, thus, 22 unexhausted for the purposes of federal habeas review. I recommend that this action be 23 dismissed without prejudice, but without leave to amend, so that petitioner may, if appropriate, 24 raise his claims in a new suit when they are exhausted in state court. 25 The petition is before me for preliminary review under Rule 4 of the Rules Governing 26 Section 2254 Cases. Under Rule 4, the judge assigned to the habeas proceeding must examine 27 the habeas petition and order a response to the petition unless it “plainly appears” that the 28 petitioner is not entitled to relief. See Valdez v. Montgomery, 918 F.3d 687, 693 (9th Cir. 2019); 1 | Boyd v. Thompson, 147 F.3d 1124, 1127 (9th Cir. 1998). 2 As before, the petition explicitly indicates that the claims being raised are still pending in 3 | state court and have not been presented and ruled upon by the California Supreme Court. ECF 4 | No. 11 at 2-3. A federal habeas claim must be exhausted by presentation to the highest state 5 | court. See Gatlin vy. Madding, 189 F.3d 882, 888 (9th Cir. 1999) (“To exhaust a habeas claim 6 | properly, a petitioner must present his claim to the state supreme court even if that court’s review 7 | is discretionary.”). Accordingly, I find that no further attempts to amend are warranted and I will 8 | recommend that this action be dismissed without prejudice as unexhausted. 9 It is RECOMMENDED that the amended complaint, ECF No. 11, be DISMISSED 10 | without prejudice and without leave to amend. 11 These findings and recommendations are submitted to the United States District Judge 12 | assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(). Within fourteen days of 13 | service of these findings and recommendations, any party may file written objections with the 14 | court and serve a copy on all parties. Any such document should be captioned “Objections to 15 | Magistrate Judge’s Findings and Recommendations,” and any response shall be served and filed 16 | within fourteen days of service of the objections. The parties are advised that failure to file 17 | objections within the specified time may waive the right to appeal the District Court’s order. See 18 | Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Yist, 951 F.2d 1153 (9th Cir. 19 | 1991). 20

IT IS SO ORDERED.

22 ( q Sty - Dated: _ May 16, 2025 ow—— 23 JEREMY D,. PETERSON

UNITED STATES MAGISTRATE JUDGE

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