Opinion
ORDER AND FINDINGS & RECOMMENDATIONS
JOHN MOULDS, 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. Petitioner has submitted a declaration that makes the showing required by § 1915(a). Accordingly, the request to proceed in forma pauperis will be granted. 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). 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 challenges his sentence on the ground that he was denied his Sixth Amendment right to a jury's determination of the factors supporting his sentence, as defined by the Supreme Court's case of Cunningham v. California , 549 U.S. 270, 127 S.Ct. 858 (2007).
After reviewing the petition for habeas corpus, the court finds that petitioner has failed to exhaust state court remedies. The court takes judicial notice of the decision on petitioner's direct appeal, People v. Duran, C042330, which did not raise a sentencing issue. The court also takes judicial notice of the fact that petitioner filed a habeas action in the Court of Appeal, but did not pursue these issues in the California Supreme Court. See In re Duran, C052804 (Court of Appeal); compare People v. Duran, S127049 (petition for review of direct appeal). Accordingly, the claims in the instant petition 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:
1. Petitioner is granted leave to proceed in forma pauperis; and
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.
IT IS HEREBY 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 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).