The opinion of the court was delivered by: Honorable Larry Alan Burns United States District Judge
(1) ORDER DENYING IN FORMA PAUPERIS APPLICATION and (2) NOTICE REGARDING POSSIBLE DISMISSAL OF PETITION FOR FAILURE TO EXHAUST STATE COURT REMEDIES
Petitioner, a state prisoner proceeding pro se, has not paid the $5.00 filing fee and has filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254, together with a request to proceed in forma pauperis pursuant to 28 U.S.C. § 1915(a).
APPLICATION TO PROCEED IN FORMA PAUPERIS
The request to proceed in forma pauperis is denied because Petitioner has not provided the Court with sufficient information to determine Petitioner's financial status. A request to proceed in forma pauperis made by a state prisoner must include a certificate from the warden or other appropriate officer showing the amount of money or securities Petitioner has on account in the institution. Rule 3(a)(2), 28 U.S.C. foll. § 2254; Local Rule 3.2. Petitioner has failed to provide the Court with the required Prison Certificate. In a letter attached to his application to proceed in forma pauperis, Petitioner states that he requested his prison trust account statement in early July but he had not received it as of July 24, 2012, and could not wait to file his Petition until the prison delivered the statement. However, as of today's date, no prison trust account statement has been received by the Court. Accordingly, Petitioner's request to proceed in forma pauperis is DENIED.
FAILURE TO ALLEGE EXHAUSTION OF STATE COURT REMEDIES
Petitioner has not alleged exhaustion as to claim one. (See Pet. at 6.) Having preliminarily determined the petition contains an unexhausted claim, the Court notifies Petitioner of the possible dismissal of his petition.
The exhaustion requirement is satisfied by providing the state courts with a "fair opportunity" to rule on Petitioner's constitutional claims. Anderson v. Harless, 459 U.S. 4, 6 (1982). In most instances, a claim is exhausted once it is presented to a state's highest court, either on direct appeal or through state collateral proceedings.*fn1 See Sandgathe v. Maass, 314 F.3d 371, 376 (9th Cir. 2002). The constitutional claim raised in the federal proceedings must be the same as that raised in the state proceedings. See id.
Here, Petitioner has not alleged exhaustion as to claim one in which he argues his rights to a fair trial and due process under the Sixth and Fourteenth Amendments were violated because the government interfered with his right to present witnesses. (Pet. at 6.)
To avoid the Court dismissing the petition on its own accord, Petitioner may choose one of the following options.
i) First Option: Demonstrate Exhaustion
Petitioner may file further papers with this Court to demonstrate that he has in fact exhausted the claims the Court has determined are likely unexhausted. If Petitioner chooses this option, his papers are due no later than October 16, 2012 and Respondent may file a reply by October 31, 2012.
ii) Second Option: Voluntarily Dismiss the Petition
Petitioner may move to voluntarily dismiss his entire federal petition and return to state court to exhaust his unexhausted claim. Petitioner may then file a new federal petition containing only exhausted claims. See Rose v. Lundy, 455 U.S. 509, 510, 520-21 (stating that a petitioner who files a mixed petition may dismiss his petition to "return to state court to exhaust his claims"). If Petitioner chooses this second option, he must ...