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Ricky Rodriguez v. State of California

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


June 27, 2012

RICKY RODRIGUEZ, PETITIONER,
v.
STATE OF CALIFORNIA, ET AL., RESPONDENTS.

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. By order filed April 3, 2012, petitioner was directed to file an amended petition. On June 13, 2012, petitioner filed an amended petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. On June 18, 2012, the case was transferred to this court by order of the United States District Court for the Southern District of California.

On June 9, 2012, petitioner consented to magistrate judge jurisdiction pursuant to 28 U.S.C. § 636(c). (Dkt. No. 5 at 11.)

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).*fn1 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.*fn2 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 is dismissed without prejudice.*fn3

Good cause appearing, IT IS HEREBY ORDERED that:

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

2. Petitioner's application for a writ of habeas corpus is dismissed without prejudice for failure to exhaust state remedies.


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