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Rhodes v. McDonald

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


June 21, 2010

ANDRE RHODES, PETITIONER,
v.
MIKE MCDONALD,*FN1 WARDEN, RESPONDENT.

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). Petitioner will be provided the opportunity to either submit the appropriate affidavit in support of a request to proceed in forma pauperis or submit the appropriate filing fee.

The petition must be dismissed for several reasons. Petitioner indicates that he is proceeding in a separate action under 42 U.S.C. § 1983 in Case No. 08-834 RHW P, of which this court takes judicial notice,*fn2 based on claims apparently related to those raised herein. Nevertheless, he inappropriately seeks money damages as part of the relief within this purported petition pursuant to 28 U.S.C. § 2254. Muhammad v. Close, 540 U.S.749, 750-751, 124 S.Ct. 1303, 1304 (2004) (per curiam) (damages is a form of relief unavailable by way of a habeas petition). Petitioner also fails to identify himself as petitioner in this action, instead calling himself "plaintiff" and referring to the respondent as a "defendant"; further, he fails to set forth what conviction and/or sentence he is challenging or when any conviction occurred or sentence was imposed. Moreover, petitioner also makes no reference to whether or not any of his claims have been 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).*fn3 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).

The petition will be dismissed but petitioner is granted leave to remedy the defects identified herein by filing an amended petition within twenty-eight days.

Accordingly, IT IS HEREBY ORDERED that:

1. The Clerk of the Court is directed to substitute High Desert State Prison Warden Mike McDonald in place of the Sacramento Police Department as the respondent in the docket of this case;

2. Petitioner shall submit, within twenty-eight days from the date of this order, an affidavit in support of his request to proceed in forma pauperis or the appropriate filing fee;

3. The petition is dismissed but petitioner is granted leave, within twenty-eight days, to file an amended petition;

4. The Clerk of the Court is directed to send petitioner a copy of the in forma pauperis form and a copy of the form for filing a petition under 28 U.S.C. § 2254 used in this district; and

5. Petitioner's failure to comply with this order will result in the dismissal of this action.


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