Opinion
No. CIV S-05-2252 LKK CMK P.
February 7, 2006
FINDINGS RECOMMENDATIONS
Petitioner is a prisoner proceeding pro se with petition for a writ of habeas corpus; however he has not requested to proceed in forma pauperis or submitted the appropriate filing fee. This proceeding was referred to this court by Local Rule 72-302 by the authority of 28 U.S.C. § 636(b)(1).
By order filed November 17, 2005, the court ordered petitioner to submit, within thirty days, an affidavit in support of his request to proceed in forma pauperis or the appropriate filing fee. The Clerk was directed to send petitioner a copy of the application to proceed in forma pauperis used in this district. Petitioner was cautioned that failure to comply with the order could result in the dismissal of this action pursuant to Local Rule 11-110. To date, plaintiff has submitted neither an application to proceed in forma pauperis nor the appropriate filing fee.
Further, after reviewing the petition for habeas corpus, the court finds that petitioner has failed to exhaust state court remedies. The exhaustion of available state remedies is a prerequisite to a federal court's consideration of claims sought to be presented in habeas corpus proceedings. See Rose v. Lundy, 455 U.S. 509 (1982); 28 U.S.C. § 2254(b). 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's claims have not been presented to the California Supreme Court. Further, there is no allegation that state court remedies are no longer available to him.
The court also notes that petitioner references Valdivia v. Schwarzenegger No. S-94-0671 LKK GGH. As instructed by Judge Karlton's September 3, 2004 memorandum, this petition was forwarded to his chambers for an initial review prior to this court's screening of the petition.
Based on the foregoing, IT IS RECOMMENDED that petitioner's application for a writ of habeas corpus be dismissed pursuant to Local Rule 11-110 and for failure to exhaust state remedies.
These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within twenty days after being served with these findings and recommendations, plaintiff may file written objections with the court. The document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Plaintiff is advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. See Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).