IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
June 4, 2010
ANTHONY TORAN, PETITIONER,
PEOPLE OF THE STATE OF CALIFORNIA, RESPONDENTS.
The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
ORDER and FINDINGS and RECOMMENDATIONS
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 appropriately completed in forma pauperis affidavit or paid the required filing fee ($5.00). See 28 U.S.C. §§ 1914(a); 1915(a). Moreover, petitioner states that he is challenging an April 19, 2010, Sutter County conviction for which he was sentenced to "two years with half CTR 216," and, on the face of it, petitioner has failed to exhaust his claims in state court. Petition, p. 1. The grounds for his challenge are 1) conviction obtained by unconstitutional failure of prosecution to disclose evidence to petitioner; 2) ineffective assistance of counsel. Petition, p. 4.
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).*fn1 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. In fact, petitioner indicates that he has not filed a direct state court appeal much less proceeded on any state court habeas petition. Petition, pp. 1-3. Nor does the recency of his sentence indicate that he has even had time to exhaust his state court claims. Thus, petitioner's 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.*fn2
In accordance with the above, IT IS HEREBY ORDERED that:
1. Petitioner has not made the requisite showing to proceed in forma pauperis;
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; 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 fourteen 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).