(HC) Solis v. Medonld, No. 2:2010cv00637 - Document 10 (E.D. Cal. 2010)
Court Description: ORDER signed by Magistrate Judge Dale A. Drozd on 06/01/10 vacating 8 FINDINGS AND RECOMMENDATIONS. Petitioner's 05/18/10 amended application for writ of habeas corpus 9 is dismissed without prejudice. Petitioner is granted 30 days from the date of this order to file a second amended application for writ of habeas corpus. The clerk of the court is directed to send petitioner the court's form application for a writ of habeas corpus. (Plummer, M)
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(HC) Solis v. Medonld Doc. 10 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 ALLEN SOLIS, 11 12 13 14 15 16 Petitioner, No. CIV S-10-0637 FCD DAD P vs. MIKE McDONALD, Respondent. ORDER / Petitioner, a state prisoner proceeding pro se, has filed an application for a writ of 17 habeas corpus pursuant to 28 U.S.C. § 2254. On May 11, 2010, the court issued findings and 18 recommendations, recommending that this action be dismissed due to petitioner’s failure to file 19 an amended application pursuant to the court’s March 31, 2010 order. Now pending before the 20 court is petitioner’s amended application for writ of habeas corpus. 21 After reviewing petitioner’s amended application for writ of habeas corpus, the 22 court is unable to determine whether petitioner has exhausted his claims before the California 23 Supreme Court prior to the filing of this action. Specifically, in his form application for habeas 24 relief, petitioner concedes that he did not raise any of his present claims in his state court appeal 25 from his conviction. Moreover, petitioner indicates that he has not filed a petition for review or a 26 habeas application with the California Supreme Court. 1 Dockets.Justia.com 1 The court hereby advises petitioner that the exhaustion of available state court 2 remedies is a prerequisite to a federal court’s consideration of his claims presented in a habeas 3 corpus proceeding. 28 U.S.C. § 2254(b); see also Rose v. Lundy, 455 U.S. 509, 102 (1982). A 4 petitioner satisfies the exhaustion requirement by providing the highest state court with a full and 5 fair opportunity to consider all claims before presenting them to the federal court. Picard v. 6 Connor, 404 U.S. 270, 276 (1971); Middleton v. Cupp, 768 F.2d 1083, 1086 (9th Cir. 1985). 7 Failure to exhaust state judicial remedies is ground for dismissal of a federal habeas petition 8 without prejudice. Accordingly, the court will grant petitioner leave to file a second amended 9 application for writ of habeas corpus. If petitioner files a second amended application, he is 10 directed to clearly allege therein whether prior to instituting this action he has exhausted his state 11 court remedies with respect to any claims set forth in his federal petition. 12 Accordingly, IT IS HEREBY ORDERED that: 13 1. The court’s May 11, 2010 findings and recommendations (Doc. No. 8) are 14 vacated; and 15 16 2. Petitioner’s May 18, 2010 amended application for writ of habeas corpus (Doc. No. 9) is dismissed without prejudice; 17 3. Petitioner is granted thirty days from the date of this order to file a second 18 amended application for writ of habeas corpus. Any second amended petition must bear the case 19 number assigned to this action and be titled “Second Amended Petition”; and 20 4. The Clerk of Court is directed to send petitioner the court’s form application 21 for a writ of habeas corpus. 22 DATED: June 1, 2010. 23 24 25 26 DAD:sj soli0637.vac 2
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