IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
March 4, 2010
BERNARD BARNES, PETITIONER,
KATHLEEN DICKINSON, RESPONDENT.
ORDER AND FINDINGS & RECOMMENDATIONS
Petitioner is a state prisoner proceeding pro se and in forma pauperis with an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. This action is proceeding on petitioner's amended petition filed August 20, 2009, challenging a May 12, 2009 decision of the California Board of Parole Hearings to deny him a parole date. This matter is before the court on respondent's motion to dismiss the action for failure to exhaust state court remedies. Petitioner has opposed the motion.*fn1
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).
After reviewing the petition for habeas corpus, the court finds that petitioner has failed to exhaust state court remedies. 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, respondent's motion to dismiss should be granted and the petition should be dismissed without prejudice.*fn3
Good cause appearing, IT IS HEREBY ORDERED that petitioner's February 18, 2010 motion for writ of mandamus is construed as an opposition to respondent's February 2, 2010 motion to dismiss; and
IT IS HEREBY RECOMMENDED that:
1. Respondent's February 2, 2010 motion to dismiss be granted; and
2. This action be dismissed without prejudice 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 fourteen days after being served with these findings and recommendations, any party may file written objections with the court. Such a document should be captioned "Objections to Findings and Recommendations." Any response to the objections shall be filed and served within fourteen days after service of the objections. The parties are 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).