Ward v. The People

Filing 5

ORDER signed by Magistrate Judge Kendall J. Newman on 12/12/14 granting 2 Motion to Proceed IFP. Petitioner is granted 30 days from the date of this order to show cause why this action should not be dismissed on grounds that the claims are not exhausted. (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DELANIOUS A WARD,

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Petitioner,

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No. 2: 14-cv-2861 KJN P

v.

ORDER

THE PEOPLE,

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Respondents.

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Petitioner, a state prisoner proceeding pro se, has filed an application for a writ of habeas

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corpus pursuant to 28 U.S.C. § 2254, together with a request to proceed in forma pauperis

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pursuant to 28 U.S.C. § 1915. Petitioner submitted a declaration that makes the showing required

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by § 1915(a). Accordingly, the request to proceed in forma pauperis will be granted.

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28 U.S.C. § 1915(a).

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Petitioner has consented to the jurisdiction of the undersigned. (ECF No. 3)

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The exhaustion of state court remedies is a prerequisite to the granting of a petition for

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writ of habeas corpus. 28 U.S.C. § 2254(b)(1). If exhaustion is to be waived, it must be waived

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explicitly by respondent’s counsel. 28 U.S.C. § 2254(b)(3).1 A waiver of exhaustion, thus, may

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not be implied or inferred. A petitioner satisfies the exhaustion requirement by providing the

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A petition may be denied on the merits without exhaustion of state court remedies. 28 U.S.C. §
2254(b)(2).
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highest state court with a full and fair opportunity to consider all claims before presenting them to

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the federal court. Picard v. Connor, 404 U.S. 270, 276 (1971); Middleton v. Cupp, 768 F.2d

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1083, 1086 (9th Cir. 1985), cert. denied, 478 U.S. 1021 (1986).

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The petition raises three claims: two claims of ineffective assistance of counsel and one

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claim alleging perjury by witnesses. Petitioner admits that none of these claims have been raised

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in state court. Therefore, these claims are not exhausted. Accordingly, petitioner is granted thirty

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days to show cause why this action should not be dismissed on grounds that no claims are

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exhausted.2

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Good cause appearing, IT IS HEREBY ORDERED that:

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1. Petitioner is granted leave to proceed in forma pauperis;

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2. Petitioner is granted thirty days from the date of this order to show cause why this

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action should not be dismissed on grounds that the claims are not exhausted.

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Dated: December 12, 2014

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Ward2861.exh

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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).
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