Knanishu v. Spearman

Filing 7

ORDER signed by Magistrate Judge Allison Claire on 3/12/2014 DISMISSING the petition and application to proceed IFP with leave to amend within 30 days, petitioner must file a new § 2254 petition and either a new application to proceed in forma pauperis or the $5.00 filing fee; and the Clerk shall send petitioner this court's form for filing a habeas corupus petition and an application to proceed ifp. (Yin, K)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 KENNETH KHANISHU, 12 13 14 15 No. 2:14-cv-0579 AC P Petitioner, v. ORDER WARDEN SPEARMAN, Respondent. 16 17 Petitioner, a state prisoner proceeding pro se, has filed a petition for a writ of habeas 18 corpus pursuant to 28 U.S.C. § 2254, together with an application to proceed in forma pauperis. 19 However, both the petition and the in forma pauperis application are deficient and must be 20 dismissed. Petitioner fails to use the petition and in forma applications appropriate for this 21 district. In addition, in his request to proceed in forma pauperis, petitioner fails to submit “the 22 affidavit required by 28 U.S.C. § 1915 and a certificate from the warden or other appropriate 23 officer of” his place of confinement showing the amount of funds he has in any prison account. 24 See Rule 3(a)(2) of the Rules Governing Section 2254 Cases. 25 In his habeas application, petitioner fails to identify the nature of the conviction he is 26 challenging or the length of his sentence. It is also unclear whether petitioner’s claims are 27 exhausted. The exhaustion of state court remedies is a prerequisite to the granting of a petition 28 for writ of habeas corpus. 28 U.S.C. § 2254(b)(1). If exhaustion is to be waived, it must be 1 1 waived explicitly by respondent’s counsel. 28 U.S.C. § 2254(b)(3).1 Accordingly, a waiver of 2 exhaustion may not be implied or inferred. A petitioner satisfies the exhaustion requirement by 3 providing the highest state court with a full and fair opportunity to consider all claims before 4 presenting them to the federal court. Picard v. Connor, 404 U.S. 270, 276 (1971); Middleton v. 5 Cupp, 768 F.2d 1083, 1086 (9th Cir. 1985), cert. denied, 478 U.S. 1021 (1986). 6 The petition will be dismissed with leave to amend, within thirty days, using the 7 appropriate habeas form for this district. Petitioner’s application to proceed in forma pauperis 8 will also be dismissed but petitioner will be permitted to file a new application, again using the 9 appropriate form for this district, or he may pay the $5.00 filing fee, within thirty days. 10 In accordance with the above, IT IS HEREBY ORDERED that: 11 1. The deficient petition and application to proceed in forma pauperis are dismissed with 12 leave to amend within thirty days, using the forms appropriate for this district. Petitioner must 13 file a new § 2254 petition and either a new application to proceed in forma pauperis or the $5.00 14 filing fee. Petitioner’s failure to comply with this order will result in a recommendation that this 15 matter be dismissed; and 16 3. The Clerk of the Court is directed to send petitioner this court’s form for filing a 17 petition for writ of habeas corpus, and the application to proceed in forma pauperis by a prisoner. 18 DATED: March 12, 2014 19 20 21 22 23 24 25 26 27 28 1 A petition may be denied on the merits without exhaustion of state court remedies. 28 U.S.C. § 2254(b)(2). 2

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