Opinion
No. CIV S-10-2867 KJM P.
November 18, 2010
ORDER
Petitioner is a state prisoner proceeding pro se with 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). 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). The United States Supreme Court has held that a federal district court may not entertain a petition for habeas corpus unless the petitioner has exhausted state remedies with respect to each of the claims raised. Rose v. Lundy, 455 U.S. 509 (1982).
From petitioner's habeas application, it appears petitioner has exhausted state court remedies with respect to claims one, two and three but has not exhausted with respect to claim four. Petitioner has two options. Within thirty days: (1) petitioner may file an amended habeas application omitting claim four; or (2) file a request to stay this action pending exhaustion of state court remedies with respect to claim four. Petitioner is informed that to be entitled to a stay, he must show good cause for his failure to exhaust earlier, and that the unexhausted claims are potentially meritorious. Rhines v. Weber, 544 U.S. 269, 277 (2005). Petitioner's failure to comply with one of these alternatives within thirty days will result in a recommendation that this action be dismissed.
Accordingly, IT IS HEREBY ORDERED that:
1. Petitioner's request to proceed in forma pauperis is granted;
2. Petitioner is granted thirty days within which to file a motion for a stay of this action pending the exhaustion of administrative remedies with respect to claim four, or an amended petition for habeas corpus wherein petitioner asserts only claims that have been presented to, and rejected by the California Supreme Court;
3. The Clerk of the Court is directed to send petitioner a form application for writ of habeas corpus under 28 U.S.C. § 2254; and
4. Petitioner's failure to comply with this order will result in a recommendation that this action be dismissed.
DATED: November 17, 2010.