(HC) Wolfe v. Woodford, et al., No. 2:2005cv01498 - Document 7 (E.D. Cal. 2005)

Court Description: ORDER and FINDINGS and RECOMMENDATIONS signed by Judge Kimberly J. Mueller on 8/10/05 ORDERING the Petitioner's 5 Motion to Proceed IFP is GRANTED. The Clerk is directed to serve a copy of this Order and F/R's with a copy of the Petition on the Attorney General of Calif. RECOMMENDING the Petitioner's Application for Writ of HC be dismissed. Motion referred to Judge Morrison C. England.(cc: Attorney General)(Sherman, T)

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(HC) Wolfe v. Woodford, et al. Doc. 7 Case 2:05-cv-01498-MCE-KJM Document 7 Filed 08/11/2005 Page 1 of 3 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 MARION C. WOLFE, JR., 11 12 13 Petitioner, No. CIV S-05-1498 MCE KJM P vs. JEANNE WOODFORD, et al., 14 Respondents. 15 ORDER AND / 16 FINDINGS & RECOMMENDATIONS Petitioner, a state prisoner proceeding pro se, has filed an application for a writ of 17 habeas corpus under 28 U.S.C. § 2254 together with a request to proceed in forma pauperis under 18 28 U.S.C. § 1915. Petitioner has submitted a declaration that makes the showing required by 19 § 1915(a). Accordingly, the request to proceed in forma pauperis will be granted. 20 28 U.S.C. § 1915(a). 21 The exhaustion of state court remedies is a prerequisite to the granting of a 22 petition for writ of habeas corpus. 28 U.S.C. § 2254(b)(1). If exhaustion is to be waived, it must 23 be waived explicitly by respondent’s counsel. 28 U.S.C. § 2254(b)(3).1 A waiver of exhaustion, 24 thus, may not be implied or inferred. A petitioner satisfies the exhaustion requirement by 25 1 26 A petition may be denied on the merits without exhaustion of state court remedies. 28 U.S.C. § 2254(b)(2). 1 Dockets.Justia.com Case 2:05-cv-01498-MCE-KJM Document 7 Filed 08/11/2005 Page 2 of 3 1 providing the highest state court with a full and fair opportunity to consider all claims before 2 presenting them to the federal court. Picard v. Connor, 404 U.S. 270, 276 (1971); Middleton v. 3 Cupp, 768 F.2d 1083, 1086 (9th Cir.), cert. denied, 478 U.S. 1021 (1986). 4 After reviewing the petition for habeas corpus, the court finds that petitioner has 5 failed to exhaust state court remedies. Although petitioner has exhausted his administrative 6 remedies, he has not presented his claims to the California Supreme Court. Further, there is no 7 allegation that state court remedies are no longer available to petitioner. Accordingly, the 8 petition should be dismissed without prejudice.2 9 Good cause appearing, IT IS HEREBY ORDERED that: 10 1. Petitioner is granted leave to proceed in forma pauperis; 11 2. The Clerk of the Court is directed to serve a copy of these findings and 12 recommendations together with a copy of the petition filed in the instant case on the Attorney 13 General of the State of California; and 14 IT IS HEREBY RECOMMENDED that petitioner's application for a writ of 15 habeas corpus be dismissed for failure to exhaust state remedies. 16 ///// 17 ///// 18 ///// 19 ///// 20 ///// 21 ///// 22 ///// 23 2 24 25 26 Petitioner is cautioned that the habeas corpus statute imposes a one year statute of limitations for filing non-capital habeas corpus petitions in federal court. In most cases, the one year period will start to run on the date on which the state court judgment became final by the conclusion of direct review or the expiration of time for seeking direct review, although the statute of limitations is tolled while a properly filed application for state post-conviction or other collateral review is pending. 28 U.S.C. § 2244(d). 2 Case 2:05-cv-01498-MCE-KJM 1 Document 7 Filed 08/11/2005 Page 3 of 3 These findings and recommendations will be submitted to the United States 2 District Judge assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 3 twenty days after being served with these findings and recommendations, petitioner may file 4 written objections with the court. The document should be captioned "Objections to Findings 5 and Recommendations." Petitioner is advised that failure to file objections within the specified 6 time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 7 (9th Cir. 1991). 8 DATED: August 10, 2005. 9 ______________________________________ UNITED STATES MAGISTRATE JUDGE 10 11 12 13 14 15 16 17 2 wolf1498.103 18 19 20 21 22 23 24 25 26 3

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