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Thomas v. Beard

United States District Court, Ninth Circuit

December 17, 2013

TITO A. THOMAS, Petitioner,
v.
JEFFREY BEARD, Respondent.

ORDER

DALE A. DROZD, Magistrate Judge.

Petitioner is a parolee who has filed an amended petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, and an application to proceed in forma pauperis. Petitioner challenges a 2012 judgment of conviction entered against him following a non-jury trial before the Sacramento County Superior Court for grand theft, perjury and making fraudulent claims, all in violation of California Penal Code §§ 487(a), 118, 129 and 72. Plaintiff has consented to Magistrate Judge jurisdiction in this action pursuant to 28 U.S.C. § 636(c). (See ECF No. 4.)

I. Application to Proceed In Forma Pauperis

Examination of the in forma pauperis application reveals that petitioner is unable to afford the costs of suit. Accordingly, the application to proceed in forma pauperis will be granted. See 28 U.S.C. § 1915(a).

II. Exhaustion of State Court Remedies

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).[1] 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 habeas court. Picard v. Connor , 404 U.S. 270, 276 (1971); Middleton v. Cupp , 768 F.2d 1083, 1086 (9th Cir. 1985).

Here, petitioner's federal habeas petition was filed on May 23, 2013 after his state habeas relief was denied by the California Supreme Court on May 15, 2013. (ECF No. 26-31 & 16.) In his habeas petition filed with the California Supreme Court, petitioner stated his grounds for relief merely as follows:

Don't understand what was going on in Court do [sic] to medication. That cost me not being myself. [sic] I have to see a doctor over at medical Health [sic] for bad medication.

(ECF No. 1 at 28.) In support of this claim for relief, petitioner alleged only as follows:

Their [sic] are lies that Office of Attorney General said and don't show. They perjury them self. [sic] They use false Testimony [sic] on the case.

(Id.) In his amended petition for federal habeas relief pending before this court, petitioner presents the following grounds for relief:

Ground one: (d) Conviction obtained by use of evidence obtained pursuant to an unlawful arrest. (J) Denial of right of Appeal.
Ground two: (f) Conviction obtained by the unconstitutional failure of the prosecution to disclose to the defendent [sic] ...

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