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Torres v. Sisto

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


June 2, 2009

ALBERTO TORRES, PETITIONER,
v.
D.K. SISTO, ET AL., RESPONDENTS.

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

FINDINGS AND RECOMMENDATIONS

Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. On January 30, 2009, petitioner filed a motion to stay this action pending exhaustion of state court remedies. On February 9, 2009, the court issued an order stating that in order to consider this motion, petitioner must file a habeas corpus petition containing his exhausted and unexhausted claims. The court granted petitioner thirty days to file his habeas petition.

On March 12, 2009, petitioner filed a habeas corpus petition. This petition did not contain petitioner's claims. Rather, it referred to the motion to stay for the statement of claims. Because the court could not determine which claims were exhausted, the court ordered petitioner to file an amended petition listing all claims and identifying which were exhausted.

On May 5, 2009, petitioner filed an amended petition. In this document, petitioner states that no claims are exhausted.

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). 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).

Because no claims are exhausted, the court must recommend dismissal of this action. The court cannot stay a petition containing no exhausted claims. See Rhines v. Weber, 544 U.S. 269, 125 S.Ct. 1528 (2005).

The Clerk of Court is directed to assign a District Judge to this case. Accordingly, IT IS HEREBY RECOMMENDED that:

1. Petitioner's motion to stay (no. 1) be denied;

2. 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).

20090602

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