Williams v. DVI - Warden
Filing
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ORDER signed by Magistrate Judge Kendall J. Newman on 6/23/11 ORDERING within 30 days after the filing date of this order: a. Petitioner shall submit an affidavit in support of his request to proceed in forma pauperis, or shall pay the full filing fe e ($5.00); OR b. Petitioner may request the voluntary dismissal of this action without prejudice and FURTHER ORDERED that Petitioner's failure to timely comply with this order will result in a recommendation that this action be dismissed without prejudice; and the Clerk of Court is directed to send petitioner a copy of the in forma pauperis application form used by this district. (Meuleman, A)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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ANTHONY JAMES WILLIAMS,
Petitioner,
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vs.
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No. 2:11-cv-1674 KJN P
DVI- WARDEN,
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Respondent.
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ORDER
Petitioner, a state prisoner proceeding without counsel, has filed an application for
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a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his 2010 conviction and
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sentence in the Sacramento County Superior Court based on his “no contest” plea. Two initial
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problems are presented.
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First, petitioner has not filed an in forma pauperis affidavit or paid the required
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filing fee ($5.00). See 28 U.S.C. §§ 1914(a); 1915(a). Therefore, petitioner will be provided the
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opportunity either to submit the appropriate affidavit in support of a request to proceed in forma
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pauperis, or to submit the appropriate filing fee.
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Second, the petition for writ of habeas corpus (completed on a form used in the
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United States District Court for the Northern District of California), indicates that petitioner has
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not exhausted his state court remedies before filing the instant federal petition. Petitioner states
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that he did not pursue a direct appeal, but did seek collateral relief in the state superior court,
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which was denied on March 3, 2011; however, petitioner states that he has not further pursued
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this matter in the state courts.
A federal district court may not entertain a petition for writ of habeas corpus
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unless the petitioner has exhausted state remedies with respect to each of the claims raised. Rose
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v. Lundy, 455 U.S. 509 (1982); 28 U.S.C. § 2254(b)(1). A petitioner satisfies the state
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exhaustion requirement by providing the highest state court with a full and fair opportunity to
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consider all claims before presenting those claims to the federal court. Picard v. Connor, 404
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U.S. 270, 276 (1971); Middleton v. Cupp, 768 F.2d 1083, 1086 (9th Cir.), cert. denied, 478 U.S.
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1021 (1986).
After petitioner has paid the filing fee, or submitted an adequately-supported
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application to proceed in forma pauperis, the court must review his federal petition subject to
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these requirements. If the court determines that petitioner has failed to exhaust his state court
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remedies, the petition must be dismissed.
Alternatively, if petitioner concludes that he is unable, at present, to demonstrate
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exhaustion of his state court remedies, he may file a request that this action be dismissed without
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prejudice. Petitioner may then continue to pursue, and ultimately exhaust, his claims in the state
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courts before filing a proper federal petition.
1. In accordance with the above, IT IS HEREBY ORDERED that, within thirty
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days after the filing date of this order:
a. Petitioner shall submit an affidavit in support of his request to proceed
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in forma pauperis, or shall pay the full filing fee ($5.00);
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OR
b. Petitioner may request the voluntary dismissal of this action without
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prejudice.
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////
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2. Petitioner’s failure to timely comply with this order will result in a
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recommendation that this action be dismissed without prejudice.
3. The Clerk of Court is directed to send petitioner a copy of the in forma
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pauperis application form used by this district.
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DATED: June 23, 2011
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_____________________________________
KENDALL J. NEWMAN
UNITED STATES MAGISTRATE JUDGE
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will1674.101a.misc
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