Brown v. Dovey et al

Filing 4

ORDER signed by Judge Gregory G. Hollows on 7/2/07: Petitioner is granted leave to proceed in forma pauperis 2. Within ten days of the date of this order, petitioner shall show cause why this action should not be dismissed for his failure to exhaust state court remedies. (Kaminski, H)

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(HC) Brown v. Dovey et al Doc. 4 Case 2:07-cv-01145-LKK-GGH Document 4 Filed 07/02/2007 Page 1 of 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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 1 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA TOMMY RAY BROWN, Petitioner, vs. J. DOVEY, et al., Respondents. / Petitioner, a state prisoner proceeding pro se, has filed an application for a writ of habeas corpus pursuant to 28 U.S.C. 2254 together with a request to proceed in forma pauperis pursuant to 28 U.S.C. 1915. Petitioner has submitted a declaration that makes the showing required by 1915(a). Accordingly, the request to proceed in forma pauperis will be granted. 28 U.S.C. 1915(a). The exhaustion of state court remedies is a prerequisite to the granting of a petition for writ of habeas corpus. 28 U.S.C. 2254(b)(1). If exhaustion is to be waived, it must be waived explicitly by respondent's counsel. 28 U.S.C. 2254(b)(3).1 A waiver of exhaustion, thus, may not be implied or inferred. A petitioner satisfies the exhaustion requirement by ORDER No. CIV S-07-1145 LKK GGH P Case 2:07-cv-01145-LKK-GGH Document 4 Filed 07/02/2007 Page 2 of 2 1 2 3 4 5 6 7 8 9 10 11 12 13 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, 92 S. Ct. 509, 512 (1971); Middleton v. Cupp, 768 F.2d 1083, 1086 (9th Cir.), cert. denied, 478 U.S. 1021 (1986). After reviewing the petition for habeas corpus, it does not appear that petitioner has exhausted state court remedies. Accordingly, petitioner is ordered to show cause within ten days of the date of this order why this action should not be dismissed for his failure to exhaust state court remedies. Good cause appearing, IT IS HEREBY ORDERED that: 1. Petitioner is granted leave to proceed in forma pauperis; 2. Within ten days of the date of this order, petitioner shall show cause why this action should not be dismissed for his failure to exhaust state court remedies. DATED: 7/2/07 /s/ Gregory G. Hollows UNITED STATES MAGISTRATE JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 2 br1145.ord

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