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Larry Gibson v. James Hartley

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


March 10, 2011

LARRY GIBSON, PETITIONER,
v.
JAMES HARTLEY, RESPONDENT

The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge

ORDER

Petitioner is a state prisoner proceeding without counsel and in forma pauperis with a habeas corpus petition pursuant to 28 U.S.C. § 2254. On February 28, 2011, this action was transferred to this court from the Fresno Division of the United States District Court for the Eastern District of California.

The petition raises five claims: 1) alleged ineffective assistance of counsel; 2) alleged juror misconduct; 3) alleged denial of counsel at probation hearing; 4) alleged untimely "return" by state; and 5) alleged judicial misconduct. From the petition, it appears that all of these claims have been presented to the California Supreme Court. Petitioner also states that ground six, which is neither identified nor described, has not been presented to the California Supreme Court.

The exhaustion of state court remedies is a prerequisite to the granting of apetition 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). 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).

It is unclear if petitioner intends to proceed only on the five exhausted claims raised in the petition or whether he has intended to raise a sixth claim which he is still exhausting in state court. For this reason, petitioner is granted twenty-one days to file a short declaration stating whether he intends to proceed only on the five exhausted claims, or whether he intends to also raise a sixth unexhausted claim. Following receipt of this briefing, the court will issue further orders.

Accordingly, IT IS HEREBY ORDERED that within twenty-one days of the date of this order, petitioner shall file the further briefing described above.

20110310

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