Opinion
No. CIV S-06-1250 DFL CMK P.
February 13, 2007
ORDER
Petitioner is a state prisoner proceeding pro se with this federal habeas petition. 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 can satisfy 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).
After a review of petitioner's habeas application, it is not clear whether petitioner has exhausted his state remedies. For example, he asserts that he has presented his claim to the California Court of Appeal, Third Appellate District, but he makes no claim that he has presented his claims to the California Supreme Court. Accordingly, the court will dismiss this petition with leave to file an amended petition which demonstrates that petitioner has exhausted his state remedies.
IT IS ORDERED that:
1. Petitioner's application for a writ of habeas corpus is dismissed.
2. Petitioner is granted thirty days within which to file an amended habeas petition on the forms to be provided by the Clerk of the Court. Petitioner must demonstrate in his amended petition that he has exhausted state court remedies with respect to his claims. Petitioner's failure to comply with this order will result in a recommendation that his petition be dismissed for failure to exhaust state remedies.
4. The Clerk of the Court is directed to send petitioner the court's form-application for a writ of habeas corpus under 28 U.S.C. § 2254.