December 4, 2013
DYTANION D. ELEY, SR., Petitioner,
SUPERIOR COURT OF STOCKTON,  Respondent.
ORDER AND FINDINGS AND RECOMMENDATIONS
ALLISON CLAIRE, Magistrate Judge.
Petitioner, a state prisoner proceeding pro se, has filed an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner has not, however, filed an in forma pauperis affidavit or paid the required filing fee ($5.00). See 28 U.S.C. §§ 1914(a); 1915(a). The court will not at this time require payment of the filing fee or a declaration that makes the showing required by § 1915(a) because it appears that petitioner's claim is not exhausted.
Petitioner challenges his June 18, 2013 conviction for petty theft with a prior, a charge to which he pled guilty and for which he evidently received a sentence of "up to two years." Petition at 2-3. The sole basis for relief petitioner has identified is that the "charges are fraudulent." Id. at 3. He indicates that his efforts to appeal or to exhaust any claim have not proceeded beyond the Third District Court of Appeal. Id. at 6.
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). A waiver of exhaustion 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).
The court finds that petitioner has failed to exhaust state court remedies. The claim or 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 should be dismissed without prejudice.
Good cause appearing, IT IS HEREBY ORDERED that the Clerk of the Court:
1. Make a random assignment of a district judge to this case; and
2. 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 RECOMMENDED that petitioner's application for a writ of habeas corpus be dismissed for failure to exhaust state remedies.
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 twenty-one 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." 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).