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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

CURTIS LEE KOLLARS,

Petitioner, No. CIV S-04-2336 DFL KJM P

vs.

M. YARBOROUGH, Warden,

Respondent. ORDER

 /

Petitioner is a state prisoner proceeding pro se with a petition for a writ of habeas

corpus under 28 U.S.C. § 2254. Petitioner challenges his El Dorado County conviction on

charges of child molestation. Respondent has moved to dismiss the petition, alleging that the

petition is “mixed” because petitioner has exhausted state remedies on some, but not all, of his

federal claims. 

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

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2

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. 1986). 

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 (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.

Petitioner raises four claims in the instant petition. He alleges his conviction

violates the guarantee against being placed once in jeopardy because prior convictions were used

to convict him of the current offenses; the conviction was obtained in violation of his Fifth

Amendment privilege against self-incrimination; the prosecution refused to honor his right not to

be placed in jeopardy twice and failed to admit this to the defense; and his conviction was based

on a coerced confession. Pet. at 5-6. 

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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

3

Respondent has lodged copies of the briefs on appeal, the Court of Appeal’s

decision, and the petition for review filed in the California Supreme Court on petitioner’s behalf. 

The petition for review raised five grounds: the prosecutor violated the double jeopardy

protections of the state and federal constitutions; the government violated a 1996 plea bargain by

basing some of the current charges on counts dismissed in 1996; the statute of limitations had run

as to several of the charges; the evidence was insufficient as to some of the counts; and petitioner

was denied his right to present a defense when the trial court denied him access to the victims’

therapist. Petition for Review at i-ii (table of contents), 1-2. 

The court interprets petitioner’s third claim presented to this court to be a

restatement of his first attack on the double jeopardy violation which underlies his conviction;

these related claims have been exhausted. However, the court finds that petitioner has failed to

exhaust state court remedies as to his second and fourth claims. 

Petitioner has opposed the motion to dismiss by asking this court to stay the

petition to give him time to exhaust claims two and four and additional claims of outrageous

government conduct, vindictive prosecution, and failure to disclose exculpatory evidence.

Petitioner’s request for a stay is premature, for the court cannot issue such an

order until the petitioner has filed a petition containing only exhausted claims. Smith v. Ratelle, 

323 F.3d 813, 819 (9th Cir. 2003), cert. denied sub nom. Alameida v. Smith, U.S. , 124

S. Ct. 2904 (9th Cir. 2004). Moreover, a stay is not appropriate absent a showing of good cause

for failing to exhaust the claims in prior proceedings and of potential merit to the claims. Rhines

v. Weber, U.S. , 125 S. Ct. 1528, 1535 (2005). 

For the reasons set forth above, 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

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other federal court. See McCleskey v. Zant, 499 U.S. 467 (1991); see also Rose, 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, 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). 

4

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

1. Respondent’s February 11, 2005 motion to dismiss is granted;

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

3. 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; and

4. Petitioner’s March 7, 2005 motion for a stay is denied without prejudice. 

DATED: August 4, 2005.

______________________________________

UNITED STATES MAGISTRATE JUDGE

2

koll2336.103

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