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

1 A petition may be denied on the merits without exhaustion of state court remedies. 28

U.S.C. § 2254(b)(2). 

1

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

THEODORE STITH,

Petitioner, No. CIV S-04-1395 DFL KJM P

vs.

MICHAEL HARRISON, 

Respondent. ORDER

 /

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

habeas corpus under 28 U.S.C. § 2254. Petitioner has paid the filing fee.

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 respondents’ 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

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 (1971); Middleton v.

Cupp, 768 F.2d 1083, 1086 (9th Cir. 1985), cert. denied, 478 U.S. 1021 (1986). 

Case 2:04-cv-01395-DFL -KJM Document 5 Filed 05/04/05 Page 1 of 3
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

2 Petitioner is cautioned that if he chooses to proceed on an amended petition raising only

exhausted claims he will risk forfeiting consideration of the unexhausted claims in this or any other

federal court. See McCleskey v. Zant, 499 U.S. 467 (1991); see alsoRose, 455 U.S. at 520-21; Rule

9(b), Rules Governing Section 2254 Cases. 

Petitioner is further 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,

2

The state court has had an opportunity to rule on the merits when the petitioner

has fairly presented the claim to that court. The fair presentation requirement is met where the

petitioner has described the operative facts and legal theory on which his claim is based. Picard,

404 U.S. at 277-78. Generally, it is “not enough that all the facts necessary to support the federal

claim were before the state courts . . . or that a somewhat similar state-law claim was made.” 

Anderson v. Harless, 459 U.S. 4, 6 (1982). Instead, 

[i]f state courts are to be given the opportunity to correct alleged

violations of prisoners’ federal rights, they must surely be alerted

to the fact that the prisoners are asserting claims under the United

States Constitution. If a habeas petitioner wishes to claim that an

evidentiary ruling at a state court trial denied him the due process

of law guaranteed by the Fourteenth Amendment, he must say so,

not only in federal court, but in state court.

Duncan v. Henry, 513 U.S. 364, 365 (1995). Accordingly, “a claim for relief in habeas corpus

must include reference to a specific federal constitutional guarantee, as well as a statement of the

facts which entitle the petitioner to relief.” Gray v. Netherland, 518 U.S. 152, 116 S. Ct. 2074,

2081 (1996). The United States Supreme Court has held that a federal district court may not

entertain a petition for habeas corpus unless the petitioner has exhausted state remedies with

respect to each of the claims raised. Rose v. Lundy, 455 U.S. 509 (1982). A mixed petition

containing both exhausted and unexhausted claims must be dismissed.

A review of petitioner’s application for writ of habeas corpus discloses that 

petitioner does not appear to have exhausted state court remedies with respect to all of his claims. 

Accordingly, the petition is a mixed petition containing both exhausted and unexhausted claims

and must be dismissed. Good cause appearing, petitioner will be granted thirty days to file an

amended petition raising only exhausted claims.2 

Case 2:04-cv-01395-DFL -KJM Document 5 Filed 05/04/05 Page 2 of 3
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

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). 

Although this court has no obligation to provide further information to petitioner, it

exercises its discretion to point petitioner to a procedure that may be available to him after he files

an amended petition. Namely, he may be able to ask the court to hold that petition in abeyance

pending exhaustion of state court remedies as to any previously unexhausted claims. The stay and

abeyance procedure is discussed in the case of Ford v. Hubbard, 330 F.3d 1086 (9th Cir. 2003),

recently vacated and remanded by the U.S. Supreme Court. See Pliler v. Ford, 542 U.S. 225 (2004)

(while not addressing propriety of stay and abeyance procedure, discussing procedure and holding

that district courts are not required to provide pro se litigants with stay and abeyance warnings). The

availability of the procedure may be affected by a decision in another case currently pending before

the U.S. Supreme Court. See Felix v. Mayle, 379 F.3d 612 (9th Cir. 2004), cert. granted, ___ U.S.

___, 125 S. Ct. 124 (2005). Petitioner may wish to conduct his own independent research in order

to determine whether seeking a stay and abeyance of any amended petition might be appropriate.

3

Petitioner has requested the appointment of counsel. There currently exists no

absolute right to appointment of counsel in habeas proceedings. See Nevius v. Sumner, 105 F.3d

453, 460 (9th Cir. 1996). However, 18 U.S.C. § 3006A authorizes the appointment of counsel at

any stage of the case “if the interests of justice so require.” See Rule 8(c), Fed. R. Governing

§ 2254 Cases. In the present case, the court does not find that the interests of justice would be

served by the appointment of counsel at the present time. 

In accordance with the above, IT IS HEREBY ORDERED that:

1. Petitioner’s petition for a writ of habeas corpus is dismissed.

2. Petitioner is granted thirty days from the date of this order to file an amended

petition raising only exhausted claims. Failure to comply with this order will result in a

recommendation that this action be dismissed without prejudice.

3. Petitioner’s request for the appointment of counsel is denied.

DATED: May 4, 2005.

______________________________________

UNITED STATES MAGISTRATE JUDGE

1 stit1395.103.mix

Case 2:04-cv-01395-DFL -KJM Document 5 Filed 05/04/05 Page 3 of 3