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King v. Board of Parole Hearings

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


May 12, 2009

DALE KING, PETITIONER,
v.
BOARD OF PAROLE HEARINGS, RESPONDENT.*FN1

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 application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner has not, however, filed an in forma pauperis affidavit or paid the required filing fee ($5.00). See 28 U.S.C. §§ 1914(a); 1915(a). Because the court's review indicates that this petition should be dismissed for failure to exhaust state court remedies, petitioner will not be required to submit the appropriate affidavit in support of a request to proceed in forma pauperis or the appropriate filing fee at this time.

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).*fn2 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 (1971); Middleton v. Cupp, 768 F.2d 1083, 1086 (9th Cir.), cert. denied, 478 U.S. 1021 (1986).

Petitioner seeks to challenge his March 5, 2009, conviction and sentencing at a parole revocation hearing on the ground that his due process rights were violated under Valdivia v. Schwarzenegger, 2009 WL 783401 (E.D. Cal. 2009), because the revocation hearing took place 36 days after the parole hold was placed on him. See Petition. The court finds that petitioner has failed to exhaust state court remedies, nor, given the very recent date of the conviction/sentence challenged, is it plausible that such exhaustion could have occurred. The claims have not been presented to the California Supreme Court. Further, there is no allegation that state court remedies are no longer available to petitioner. Accordingly, the petition should be dismissed without prejudice.*fn3

Accordingly, IT IS HEREBY ORDERED that:

1. Petitioner will not be required to submit the appropriate affidavit in support of a request to proceed in forma pauperis or the appropriate filing fee at this time;

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;

3. The Clerk of the Court is directed to assign a district judge to this case; 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. § 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 time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).


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