IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
May 19, 2011
REGINALD BLOUNT, PETITIONER,
SACRAMENTO SUPERIOR COURT RESPONDENT.
The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
Petitioner, a state prisoner proceeding without counsel, has filed an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, together with a request to proceed in forma pauperis.
Examination of the affidavit reveals that petitioner is unable to afford the costs of this action. Accordingly, leave to proceed in forma pauperis is granted. 28 U.S.C. § 1915(a).
However, after reviewing the petition for writ of habeas corpus, the
court finds that petitioner may have failed to exhaust his state court
remedies. Petitioner challenges a sentence imposed in December 2008.
Petitioner states that he did not pursue an appeal, and has
not sought collateral relief through the state courts.*fn1
(Dkt. No. 1 at 5-6.)
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 must 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).
Here, because it does not appear that petitioner's claim has been presented to the California Supreme Court (and petitioner does not allege or demonstrate the unavailability of state court remedies), the petition will be dismissed with leave to file an amended petition that demonstrates exhaustion of petitioner's state court remedies.*fn2
Accordingly, IT IS HEREBY ORDERED that:
1. Petitioner's application to proceed in forma pauperis (Dkt. No. 2) is granted; and
2. The petition for writ of habeas corpus (Dkt. No. 1) is dismissed with leave to file, within thirty days after the filing date of this order, an amended petition that demonstrates exhaustion of petitioner's state court remedies.