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Harell Smith v. Kathleen Alison

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


September 27, 2011

HARELL SMITH, PETITIONER,
v.
KATHLEEN ALISON, WARDEN,*FN1 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.*fn2 Petitioner has consented to the jurisdiction of the undersigned. See Consent at docket # 6. 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). Nevertheless, the court will not require an affidavit in support of his request to proceed in forma pauperis or the appropriate filing fee at this time because, on the face of it, petitioner has wholly failed to exhaust his claims in state court, and the petition must be dismissed.

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).

After reviewing the petition for habeas corpus, the court finds that petitioner has failed to exhaust state court remedies. Petitioner challenges the length of his 2006 sentence arising from a no contest plea in Shasta County Court to lewd and lascivious acts with a child (Cal. Penal Code 288(a)). See Petition. Petitioner expressly states that he neither appealed the sentence nor filed any state court habeas challenge to it. Id. Thus, the claims have not been presented to the California Supreme Court. Further, there is no allegation that state court remedies are no longer available to petitioner. Accordingly, the petition will be dismissed without prejudice.*fn4

Good cause appearing, IT IS HEREBY ORDERED that:

1. Petitioner's application for a writ of habeas corpus is dismissed for failure to exhaust state remedies, and

2. The Clerk of the Court is directed to serve a copy of this order together with a copy of the petition filed in the instant case on the Attorney General of the State of California.


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