IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
September 6, 2012
RICHARD WALLACE, PETITIONER,
GARY R. STATON, SHERIFF-CORONER, RESPONDENT.
The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
ORDER AND / FINDINGS & RECOMMENDATIONS
Petitioner, a state prisoner proceeding without counsel or "pro se," 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 pursuant to 28 U.S.C. § 1915. Petitioner has submitted a declaration that makes the showing required by § 1915(a). Accordingly, the request to proceed in forma pauperis will be granted. 28 U.S.C. § 1915(a).
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. 1985), 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
because the claims have not been presented to the California
Supreme Court. See 28 U.S.C. § 2254(b)(1); Rose v. Lundy, 455 U.S. 509
(1982); Picard v. Connor, 404 U.S. 270, 276 (1971); Middleton v. Cupp,
768 F.2d 1083, 1086 (9th Cir. 1985), cert. denied, 478 U.S. 1021
(1986). Further, there is no allegation that state court remedies are
no longer available to petitioner. Accordingly, the petition should be
dismissed without prejudice.*fn3
Good cause appearing, IT IS HEREBY ORDERED that:
1. Petitioner is granted leave to proceed in forma pauperis;
2. The Clerk of the Court is directed to serve a copy of these findings and recommendations together with a copy of the petition filed in the instant case on the Attorney General of the State of California; and
IT IS HEREBY RECOMMENDED that petitioner's application for a writ of habeas corpus be dismissed for failure to exhaust state remedies and the certificate of appealability referenced in 28 U.S.C. § 2253 should not issue.
These findings and recommendations will be submitted to the United States District Judge assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days after being served with these findings and recommendations, petitioner may file written objections with the court. The document should be captioned "Objections to Findings and Recommendations." Any response to the objections shall be filed and served within fourteen days after service of the objections. Petitioner is advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).