IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
August 16, 2010
LAMONT A. HOUZE, II, PETITIONER,
STATE OF CALIFORNIA, RESPONDENT.
The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
FINDINGS & RECOMMENDATIONS
Petitioner, a non-revokable parolee, proceeding pro se, has filed an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.
On July 13, 2010, the court ordered petitioner to show cause why the petition should not be dismissed for failure to properly exhaust his claims in state court. The court noted that the petition stated that an appeal was still pending with the Court of Appeal. On July 26, 2010, petitioner filed a response.
The exhaustion of available state remedies is a prerequisite to a federal court's consideration of claims sought to be presented in habeas corpus proceedings. See Rose v. Lundy, 455 U.S. 509 (1982); 28 U.S.C. § 2254(b). 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. 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).
Petitioner's response only briefly addresses the issue of exhaustion, instead it discusses the substance of his claims. Petitioner states that he:
"has tried on at least two occasions to be heard by the Court of Appeal through a motion to modify the charge or reduce the sentence which was imposed. The clerk of the court informed this petitioner that any filings must be done by the attorney of record who would not file said modification/reduction of charge. This has left said petitioner without a say in the Court of Appeals unless said petitioner wishes to dismiss his current representation."
Response at 1.
Based on petitioner's response, it does not appear that the state courts have had a full and fair opportunity to review the claims brought in the instant habeas petition. This court will not interfere with the prosecution of petitioner's direct appeal. Moreover, petitioner can always file a state habeas petition in the Supreme Court raising the claim he desires. This case should be dismissed without prejudice so petitioner may properly exhaust his claims.*fn1
Accordingly, IT IS HEREBY RECOMMENDED that this petition be dismissed without prejudice.
These findings and recommendations are submitted to the United States District Judge assigned to the 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 and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Any reply to the objections shall be served and filed 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 statute of District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).