(HC) Stone v. Prosper, No. 2:2006cv01712 - Document 5 (E.D. Cal. 2006)

Court Description: FINDINGS and RECOMMENDATIONS signed by Judge Craig M. Kellison on 8/16/06 ORDERING that ptnr's application to proceed IFP is GRANTED. It is RECOMMENDED that ptnr's application for a writ of habeas corpus be Dismissed for failure to exhaust state remedies. Parties may file written objections w/in 10 days.(Brown, T) Modified on 9/21/2006 (Brown, T).

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(HC) Stone v. Prosper Doc. 5 Case 2:06-cv-01712-RRB-CMK Document 5 Filed 08/17/2006 Page 1 of 2 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 LESLIE GENE STONE, 11 Petitioner, 12 13 No. CIV S-06-1712 DFL CMK P vs. PEOPLE OF THE STATE OF CALIFORNIA, Respondents. 14 FINDINGS & RECOMMENDATIONS / 15 Petitioner, a state prisoner proceeding pro se, has filed an application for a writ of 16 17 habeas corpus pursuant to 28 U.S.C. § 2254, together with a request to proceed in forma 18 pauperis. 19 20 21 Examination of the affidavit reveals petitioner is unable to afford the costs of this action. Accordingly, leave to proceed in forma pauperis is granted. 28 U.S.C. § 1915(a). The exhaustion of available state remedies is a prerequisite to a federal court's 22 consideration of claims sought to be presented in habeas corpus proceedings. See Rose v. 23 Lundy, 455 U.S. 509 (1982); 28 U.S.C. § 2254(b). A petitioner can satisfy the exhaustion 24 requirement by providing the highest state court with a full and fair opportunity to consider all 25 claims before presenting them to the federal court. Picard v. Connor, 404 U.S. 270, 276 (1971), 26 Middleton v. Cupp, 768 F.2d 1083, 1086 (9th Cir.), cert. denied, 478 U.S. 1021 (1986). 1 Dockets.Justia.com Case 2:06-cv-01712-RRB-CMK Document 5 Filed 08/17/2006 Page 2 of 2 1 After reviewing the petition for habeas corpus, the court finds that petitioner has 2 failed to exhaust state court remedies. Petitioner indicated that he has not pursued any appeals 3 other than a direct appeal. The claims have not been presented to the California Supreme Court. 4 Further, there is no allegation that state court remedies are no longer available to him. 5 Accordingly, IT IS HEREBY RECOMMENDED that petitioner's application for a writ of 6 habeas corpus be dismissed for failure to exhaust state remedies.1 These findings and recommendations will be submitted to the United States 7 8 District Judge assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 9 twenty days after being served with these findings and recommendations, any party may file 10 written objections with the court and serve a copy on all parties. Such a document should be 11 captioned “Objections to Findings and Recommendations.” Any reply to the objections shall be 12 served and filed within ten days after service of the objections. The parties are advised that 13 failure to file objections within the specified time may waive the right to appeal the District 14 Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 15 16 DATED: August 16, 2006. 17 ______________________________________ CRAIG M. KELLISON UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 24 25 26 "A petitioner for habeas corpus relief must name the state officer having custody of him or her as the respondent to the petition.” Stanley v. California Supreme Court, 21 F.3d 359, 360 (9th Cir. 1994) (citing Rule 2(a), 28 U.S.C. foll. § 2254). In the instant action, petitioner has named the People of the State of California as respondents. These individuals are not the proper respondents in this action. Petitioner is cautioned that should he return to this court after exhaustion, he should name the proper respondent. Failure to do so will result in the dismissal of the petition with leave to amend. See Stanley, 21 F.3d at 360. 1 2

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