United States District Court, E.D. California
JAMES A. DIAZ, Petitioner,
9TH DISTRICT COURT OF CALIFORNIA, Respondent.
ORDER and FINDINGS AND RECOMMENDATIONS
DALE A. DROZD, 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, together with a request to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. For the reasons set forth herein, the undersigned grants petitioner's request to proceed in forma pauperis but recommends dismissal of this action without prejudice.
Petitioner commenced this action when he was incarcerated at Deuel Vocational Institute (DVI). The "Inmate Locator" website operated by the California Department of Corrections and Rehabilitation indicates that petitioner is now incarcerated at Salinas Valley State Prison.
Petitioner has submitted a declaration that makes the showing required by Section 1915(a). Accordingly, his request to proceed in forma pauperis will be granted. 28 U.S.C. § 1915(a).
However, petitioner's application for a writ of habeas corpus must be dismissed. The failure of petitioner to utilize the appropriate form or name the proper respondent would not be fatal,  were it not for the following additional deficiencies. In his petition petitioner alleges that petitioner is "not appealing [his] conviction [but]... challenging the 3 strike[s] law itself." (ECF No. 1 at 3.) In this regard, petitioner explains:
I am in the process of appeal; Appealing the conviction itself; This petition is not my appeal, its challenging the CA. 3 Strike law, as unconstitutional law.
(Id. at 5.)
It is clear from this allegation that petitioner has not exhausted his claim by presenting it first to the highest state court. The exhaustion of state court remedies is a prerequisite to this court's consideration of a petition for writ of habeas corpus under § 2254, absent demonstration of a recognized exception to this requirement, not presented here. See 28 U.S.C. § 2254(b)(1). A petitioner satisfies the exhaustion requirement by providing the state's highest 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). Petitioner's concession that his direct appeal was pending when he commenced this action demonstrates his failure to first exhaust state court remedies. Moreover, there is no authority for petitioner's abstract challenge to the constitutionality of California's Three Strikes Law. See U.S. Const. art. III, § 2 (federal court jurisdiction limited to active cases and controversies).
For these reasons, petitioner's application for a writ of habeas corpus must be dismissed.
Accordingly, IT IS HEREBY ORDERED that:
1. Petitioner is granted leave to proceed in forma pauperis.
2. The Clerk of Court is directed to change petitioner's address of record to Salinas Valley State Prison, P.O. Box 1050, Soledad, CA 93960-1050.
3. The Clerk of Court is directed to randomly assign a district ...