(HC) Cleveland v. Robertson

Opinion

PIERRE CLEVELAND, No. 2: 20-cv-0674 KJN P Petitioner, v. ORDER Respondent. Petitioner, a state prisoner proceeding pro se, has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, together with an 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). 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, 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, it does not appear that petitioner has exhausted state court remedies. The 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, petitioner is ordered to show cause why this action should not be dismissed based on his failure to exhaust state court remedies.! In accordance with the above, IT IS HEREBY ORDERED that: 1. Petitioner’s motion to proceed in forma pauperis is granted; 2. Within sixty days of the date of this order, petitioner shall show cause why this action should not be dismissed based on his failure to exhaust state court remedies; failure to respond to this order will result in a recommendation of dismissal of this action. Dated: April 6, 2020 40 Ad UNITED STATES MAGISTRATE JUDGE Clev674.osc 1 Petitioner is cautioned that the habeas corpus statute imposes a one year statute of limitations for filing non-capital habeas corpus petitions in federal court. In most cases, the one year period will start to run on the date on which the state court judgment became final by the conclusion of direct review or the expiration of time for seeking direct review, although the statute of limitations is tolled while a properly filed application for state post-conviction or other collateral review is pending. 28 U.S.C. § 2244(d).