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Belton v. McDonald

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


May 20, 2009

WILLIE BELTON, III, PETITIONER,
v.
MCDONALD, RESPONDENT.

The opinion of the court was delivered by: Craig M. Kellison United States Magistrate Judge

ORDER

Petitioner, a state prisoner proceeding pro se, brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.

Pending before the court is Petitioner's request for leave to proceed in forma pauperis (Doc. 8). Petitioner has submitted the affidavit required by 28 U.S.C. § 1915(a) showing that Petitioner is unable to prepay fees and costs or give security therefor. Petitioner's motion will therefore be granted.

Also pending before the court is Petitioner's petition for a writ of habeas corpus (Doc. 1). Rule 4 of the Federal Rules Governing Section 2254 Cases provides for summary dismissal of a habeas petition "[i]f it plainly appears from the face of the petition and any exhibits annexed to it that the petitioner is not entitled to relief in the district court." In the instant case, it is plain that Petitioner is not entitled to federal habeas relief. In particular, the exhaustion of available state remedies is required before claims can be presented to the federal court in a habeas corpus case. See Rose v. Lundy, 455 U.S. 509 (1982); see also Kelly v. Small, 315 F.3d 1063, 1066 (9th Cir. 2003); Hunt v. Pliler, 336 F.3d 839 (9th Cir. 2003). A petitioner can satisfy 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. See Picard v. Connor, 404 U.S. 270, 276 (1971), Middleton v. Cupp, 768 F.2d 1083, 1086 (9th Cir. 1986).

Upon review of the instant petition, the court concludes that Petitioner has not exhausted state court remedies as to any of his claims. Petitioner clearly states in his petition that his 2007 conviction out of the Sacramento County Superior Court was directly appealed to the California Court of Appeals, Third Appellate District. The California Court of Appeals affirmed Petitioner's conviction on November 18, 2008. He then specifically states he did not seek further review by a higher state court. In addition, it appears from his lack of response to the questions posed in the petition, that he did not file any other petitions, applications or motions concerning his conviction, other than the direct appeal. It therefore plainly appears from the face of the petition that Petitioner is not entitled to relief in the district court based on his failure to provide the highest state court with a full and fair opportunity to consider his claims before presenting them to the federal court.

Based on the foregoing, petitioner will be required to show cause in writing, within 30 days of the date of this order, why his petition for a writ of habeas corpus should not be summarily dismissed, without prejudice, for failure to exhaust state court remedies. Petitioner is warned that failure to respond to this order may result in dismissal of the petition for the reasons outlined above, as well as for failure to prosecute and comply with court rules and orders. See Local Rule 11-110. If petitioner agrees that this action should be dismissed without prejudice to renewal following exhaustion of his claims in state court, he should file a request for voluntary dismissal pursuant to Federal Rule of Civil Procedure 41(a)(1).

Accordingly, IT IS HEREBY ORDERED that:

1. Petitioner's motion for leave to proceed in forma pauperis (Doc. 8) is granted; and

2. Petitioner shall show cause in writing, within 30 days of the date of this order, why his petition for a writ of habeas corpus should not be summarily dismissed, without prejudice, for failure to exhaust state court remedies.

20090520

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