FINDINGS AND RECOMMENDATIONS
Petitioner, a former state prisoner proceeding pro se, has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, together with an application to proceed in forma pauperis.
Rule 4 of the Rules Governing Section 2254 Cases allows a district court to dismiss a petition if it "plainly appears from the face of the petition and any exhibits annexed to it that the petitioner is not entitled to relief in the district court. . . ." Rule 4, Rules Governing Section 2254 Cases. The Advisory Committee Notes to Rule 8 indicate that the court may dismiss a petition for writ of habeas corpus at several stages of a case, including "summary dismissal under Rule 4; a dismissal pursuant to a motion by the respondent; a dismissal after the answer and petition are considered; or a dismissal after consideration of the pleadings and an expanded record."
On January 31, 2012, petitioner commenced this action by filing a petition for writ of habeas corpus. Therein, he alleges that on August 20, 2009, a Sacramento County Superior Court jury found him guilty of stalking. The trial court sentenced petitioner to two years in state prison. His judgment of conviction was affirmed by the California Court of Appeal and his Petition for Review was denied by the California Supreme Court. In his habeas petition pending before this court, petitioner asserts the following claims: (1) his conviction was based on inconsistent witness testimony; and (2) & (3) his stalking conviction should have been deemed a misdemeanor offense and not a felony. (Pet. at 5-6.)
PETITIONER'S PRIOR PROCEEDINGS
The court's own records reveal that petitioner previously filed a petition for writ of habeas corpus in this court attacking the same underlying state court conviction. See Case No. CIV S-11-1549 GEB GGH.*fn1 In that previously-filed federal habeas action, petitioner raised four claims: (1) his stalking conviction should have been deemed a misdemeanor and not a felony;
(2) his conviction was based on inconsistent witness testimony; (3) he did not commit a malicious act to support a stalking finding; and (4) he never made a threat to support a stalking finding. See Case No. CIV S-11-1549 GEB GGH.
On January 26, 2012, Magistrate Judge Gregory G. Hollows issued findings and recommendations, recommending petitioner's application for writ of habeas corpus in that case be dismissed without prejudice. After reviewing the petition, respondent's answer, and petitioner's traverse, Magistrate Judge Hollows determined that petitioner had raised both exhausted and unexhausted claims in his petition. Specifically, petitioner's claims that his stalking conviction should have been deemed a misdemeanor and not a felony, that his conviction was based on inconsistent witness testimony, and that he did not commit a malicious act to support a conviction for stalking were all unexhausted. The only claim petitioner had exhausted was his claim that he never made a threat to support a conviction for stalking. Magistrate Judge Hollows advised petitioner that a federal district court cannot grant a petition for writ of habeas corpus unless the petitioner has exhausted his state court remedies, and while a federal court can stay a petition and hold it in abeyance, petitioner had not requested a stay or demonstrated good cause for a stay. Id.
On February 15, 2012, District Judge Garland E. Burrell, Jr. adopted the findings and recommendations in full and dismissed the petition without prejudice. Judge Burrell also declined to issue a certificate of appealability. Id.
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).*fn2
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
For the same reasons discussed in Magistrate Judge Hollows' findings
and recommendations in Case No. CIV S-11-1549 GEB GGH, the court finds
that the claims in
petitioner's pending habeas petition are unexhausted.*fn3
In this regard the court notes that in his form habeas
petition filed in this action, petitioner acknowledges that has still
not presented any of his claims to the California Supreme Court on
direct appeal or through a petition for writ of habeas corpus. (Pet.
at 3-4.) Accordingly, the court concludes that this action should ...