The opinion of the court was delivered by: Carolyn K. Delaney United States Magistrate Judge
ORDER AND FINDINGS AND RECOMMENDATIONS
Petitioner, a state prisoner, 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.
Petitioner challenges his 2009 conviction and sentence for first degree murder, raising three claims: (1) actual innocence; (2) trial counsel rendered ineffective assistance; and (3) the life without parole (LWOP) sentence imposed on petitioner, a juvenile, constitutes cruel and unusual punishment. (ECF No. 4*fn1 ("Ptn.") at 2-3.*fn2 ) Petitioner concedes that these claims have not been exhausted in the California Supreme Court. (Id. at 14.) Rather, the instant claims are the subject of an April 18, 2013 decision by the Sacramento County Superior Court on state habeas review. (ECF No. 4-1 at 17-32.)
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).
Petitioner requests that this court hold the petition in abeyance until he is able to exhaust his claims in the California Supreme Court. (Ptn. at 14.) However, the court cannot stay a wholly unexhausted petition. See Raspberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir. 2006). As the Ninth Circuit explained:
District courts have the discretion to hold a mixed petition in abeyance pending exhaustion of the unexhausted claims. We decline to extend that rule to the situation where the original habeas petition contained only unexhausted claims.... Once a district court determines that a habeas petition contains only unexhausted claims, it need not inquire further as to petitioner's intentions. Instead, it may simply dismiss the habeas petition for failure to exhaust.
Raspberry, 448 F.3d at 1154. See also Jiminez v. Rice, 276 F.3d 478, 481 (9th Cir. 2001) (district court obliged to dismiss immediately a petition containing no exhausted claims).
Accordingly, the petition should be dismissed without prejudice.*fn4
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
3. The Clerk of Court is directed to assign a district judge to this action.
IT IS HEREBY RECOMMENDED that petitioner's application for a writ of habeas corpus be dismissed for ...