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Daniels v. Glenn County Superior Court

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


September 10, 2008

KEVIN J. DANIELS, PETITIONER,
v.
GLENN COUNTY SUPERIOR COURT, RESPONDENTS.

The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge

ORDER

Petitioner, a state prisoner proceeding pro se, has filed an amended application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner has paid the filing fee.

The exhaustion of state court remedies is a prerequisite to the granting of a petition for writ of habeas corpus. 28 U.S.C. § 2254(b)(1). If exhaustion is to be waived, it must be waived explicitly by respondent's counsel. 28 U.S.C. § 2254(b)(3).*fn1 A waiver of exhaustion, thus, may not be implied or inferred. A petitioner satisfies 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, 92 S.Ct. 509, 512 (1971); Middleton v. Cupp, 768 F.2d 1083, 1086 (9th Cir.), cert. denied, 478 U.S. 1021 (1986).

After reviewing the petition for habeas corpus, it does not appear that petitioner has exhausted state court remedies. It does not appear that the claims have been presented to the California Supreme Court. Accordingly, petitioner shall show cause why this action should not be dismissed for his failure to exhaust state court remedies. If the claims have been presented to the California Supreme Court, petitioner shall file a short declaration describing in what type of action the claims were presented. If petitioner has a copy of the order by the California Supreme Court denying the claims, he shall file this as well.

Good cause appearing, IT IS HEREBY ORDERED that within twenty days of the date of this order, petitioner shall show cause why this action should not be dismissed for his failure to exhaust state court remedies.


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