The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
ORDER AND FINDINGS AND RECOMMENDATIONS
Petitioner is a state prisoner proceeding without counsel with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Pending before the court is respondent's May 21, 2010 motion to dismiss. On July 9, 2010, petitioner was ordered to show cause for his failure to oppose respondent's motion. On July 27, 2010, petitioner filed an amended petition containing a response to the motion to dismiss. On July 28, 2010, petitioner filed a response to the show cause order as well as a request for extension of time to file an opposition to respondent's motion. Good cause appearing, the order to show cause is discharged.
On August 8, 2010, petitioner filed another request for extension of time to file an opposition to respondent's motion. Because petitioner's amended petition addresses the issues raised in the motion to dismiss, the requests for extension of time to file an opposition are denied as unnecessary.
After carefully reviewing the record, the undersigned recommends that respondent's motion be granted.
On March 15, 2010, petitioner filed the original petition raising the following claims:
1) the trial court erred by failing to accept his stipulation regarding gang membership;
2) jury instruction error; 3) insufficient evidence; 4) the trial court erred in failing to exclude evidence regarding petitioner's gang moniker; 5) the trial court erred in admitting statements by two witnesses under the exception to the hearsay rule set forth in California Evidence Code § 1240.
Respondent argues that none of the claims raised in the original petition 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). Therefore, a waiver of exhaustion 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).
Respondent argues that the only filing petitioner presented to the California Supreme Court was his petition for review on direct appeal. (Respondent's Lodged Document
1.) The petition for review raised one claim:
Where trial counsel objects to the admission of certain evidence on the basis that it is hearsay; the prosecution then asserts that it falls under a hearsay exception for spontaneous statements under Evidence Code section 1240; is defense counsel then required to object to the admission ...