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Sullivan v. People

August 25, 2008

EDWARD SULLIVAN, PETITIONER,
v.
PEOPLE OF THE STATE OF CALIFORNIA*FN1, RESPONDENTS.



ORDER AND FINDINGS AND RECOMMENDATIONS

Petitioner, a state prisoner proceeding pro se, has filed an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 together with a request to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. Petitioner has submitted a declaration that makes the showing required by § 1915(a). Accordingly, the request to proceed in forma pauperis will be granted. See 28 U.S.C. § 1915(a).

The exhaustion of state court remedies is a prerequisite to the granting of a petition for writ of habeas corpus. See 28 U.S.C. § 2254(b)(1). If exhaustion is to be waived, it must be waived explicitly by the respondent's counsel. See 28 U.S.C. § 2254(b)(3). A waiver of exhaustion, thus, may not be implied or inferred.

A petitioner satisfies the exhaustion requirement by fairly presenting to the highest state court all federal claims before presenting them to the federal court. See Duncan v. Henry, 513 U.S. 364, 365 (1995) (per curiam); Picard v. Connor, 404 U.S. 270, 276 (1971); Crotts v. Smith, 73 F.3d 861, 865 (9th Cir. 1996); Middleton v. Cupp, 768 F.2d 1083, 1086 (9th Cir. 1986).

In his form petition, petitioner sets forth three grounds upon which he challenges his 2006 conviction in the Butte County Superior Court. In that petition, however, petitioner also alleges that he challenged that conviction on appeal only to the California Court of Appeal for the Third Appellate District and has not filed any state habeas action challenging that conviction. Thus, the allegations of the petition concede that petitioner has failed to present his federal constitutional claims to the California Supreme Court and there is no allegation that state court remedies are no longer available to petitioner. Thus, upon reviewing the petition for habeas corpus pending before this court, the undersigned finds that petitioner has failed to exhaust state court remedies. Accordingly, the petition should be dismissed without prejudice.*fn2

Good cause appearing, IT IS HEREBY ORDERED that:

1. Petitioner is granted leave to proceed in forma pauperis;

2. The Clerk of the Court is directed to serve a copy of these findings and recommendations together with a copy of the petition filed in the instant case on the Attorney General of the State of California; and

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. ยง 636(b)(l). Within twenty days after being served with these findings and recommendations, petitioner may file written objections with the court. The document should be captioned "Objections to Findings and Recommendations." Petitioner is advised that failure to file objections within the specified ...


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