ORDER AND FINDINGS AND RECOMMENDATIONS
Petitioner, a former state prisoner proceeding without counsel, seeks a writ of habeas corpus. See 28 U.S.C. § 2254. At the time the petition was filed, petitioner was incarcerated at Deuel Vocational Institution on a parole violation charge. Petitioner claims that his Valdivia due process rights were violated during parole revocation proceedings in 2007. See Valdivia v. Davis, 206 F. Supp. 2d 1068, 1078 (E.D. Cal. 2002). On May 20, 2008, respondent moved to dismiss the petition upon the ground that petitioner failed to exhaust state remedies. Petitioner did not file an opposition brief. On June 5, 2008, however, petitioner requested a stay until the court addresses petitioner's October 16, 2007 notice of related cases. For the reasons stated below, the court denies petitioner's request for a stay and finds that respondent's motion to dismiss should be granted.
On October 16, 2007,petitioner filed a notice of related cases pursuant to Local Rule 83-123, requesting that this court relate this action to the Valdivia action, Case No. Civ. S-94-0671 LKK GGH. Thereafter, on June 5, 2008, petitioner requested a stay until the court addresses petitioner's notice of related cases. However, neither the notice of related cases nor the request for stay excuse petitioner's failure to file an opposition or a statement of no opposition to respondent's motion, in accordance with the Local Rules. See L.R. 78-230(c), (m). In light of the recommendation herein that the motion to dismiss be granted, the court will not address the incomplete notice of related cases.*fn1 Thus, petitioner's request for a stay pending resolution of his notice of related cases, is denied.
II. Motion to Dismiss for Failure to Exhaust
A district court may not grant a petition for a writ of habeas corpus unless "the applicant has exhausted the remedies available in the courts of the State," or unless there is no State corrective process or "circumstances exist that render such process ineffective to protect the rights of the applicant." 28 U.S.C. § 2254(b)(1). A petitioner satisfies the exhaustion requirement by presenting the "substance of his federal habeas corpus claim" to the state courts. Picard v. Connor, 404 U.S. 270, 278 (1971) (no exhaustion where the petitioner presented operative facts but not legal theory to state courts); see also Duncan v. Henry, 513 U.S. 364, 365 (1995) (to exhaust a claim, a state court "must surely be alerted to the fact that the prisoners are asserting claims under the United States Constitution"). A claim is unexhausted if any state remedy is available. See O'Sullivan v. Boerckel, 526 U.S. 838, 848 (1999) (petitioner must seek discretionary review from state court of last resort); Roberts v. Arave, 874 F.2d 528, 529 (9th Cir. 1988) (no exhaustion where state supreme court referred petitioner's appeal of trial court's denial of post-conviction relief to lower appellate court and petitioner failed to appeal lower court's disposition of that appeal to state supreme court). Unless the respondent specifically consents to the court entertaining unexhausted claims, a petition containing such claims must be dismissed. See 28 U.S.C. § 2254(b)(3); Picard, 404 U.S. at 275. For a California prisoner to exhaust, he must present his claims to the California Supreme Court on appeal in a petition for review or on post-conviction in a petition for a writ of habeas corpus. See Carey v. Saffold, 536 U.S. 223, 239-40 (2002) (describing California's habeas corpus procedure); Gatlin v. Madding, 189 F.3d 882, 888 (9th Cir. 1999) (to exhaust, prisoner must present claims on appeal to California Supreme Court in a petition for review).
Here, petitioner essentially concedes that he has not exhausted his claims. On page two of the petition, petitioner checked the "yes" box in response to the question asking whether he had appealed from the judgment. He explained this response, however, by stating that "per Valdivia . . . this petition is my appeal." Pet. at 2. Furthermore, on page three of the petition, he checked the "no" box in response to the question asking whether, other than a direct appeal, he had previously filed any petitions, applications or motions with respect to this judgment in any court, state or federal. Id. at 3. It appears from the petition that petitioner may believe that under the Valdivia injunction, he is either not required or not permitted to exhaust state remedies. See id. at 2 (stating that "per Valdivia . . . this petition is my appeal"); see also id. at 4 (explaining that he did not appeal from the adverse action on any petition, application, or motion because under Valdivia, his "only appeal remedy is a habeas petition.").*fn2 Petitioner must, however, exhaust his state remedies in the state courts before seeking federal habeas relief. See Byes v. BPT State of Cal., 2008 U.S. Dist. LEXIS 24483, at *4 (C.D. Cal. Feb. 11, 2008) (while it is no longer necessary "to file administrative appeals of most parole decisions, . . . the [Valdivia] settlement did not excuse petitioner from the federal statutory requirement of having to exhaust his state remedies in the state courts before seeking federal habeas relief."). Since petitioner has not exhausted state court remedies by presenting his claims to the California Supreme Court, the pending habeas petition should be dismissed without prejudice.
Accordingly, it is hereby ORDERED that petitioner's request to stay this action (docket no. 16) is denied.
Further, it is hereby RECOMMENDED that respondent's motion to dismiss this action (docket no. 15) be granted and the Clerk be directed to close the case.
These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen 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 Magistrate Judge's Findings and Recommendations." Failure to file objections within the specified time may waive the right to ...