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 The gravamen of the action at bar is a challenge to a prison disciplinary conviction 1

suffered by petitioner in 2003. Although it is not entirely clear, petitioner may also be attempting

to raise claims related to conditions of his confinement. See, e.g., Petition, filed December 16,

2004, at 5 (allegation that petitioner was assaulted by staff; claim for “medical neglect”). Such

claims are properly brought in federal court in a civil rights action pursuant to 42 U.S.C. § 1983. 

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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

ROBERT TUNSTALL,

Petitioner, No. CIV S-04-2658 DFL JFM P

vs.

TERESA A. SCHWARTZ, et al.,

Respondents. ORDER AND

 / FINDINGS & RECOMMENDATIONS

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 1

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 A petition may be denied on the merits without exhaustion of state court remedies. 28 2

U.S.C. § 2254(b)(2). 

 Petitioner is cautioned that the habeas corpus statute imposes a one year statute of 3

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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must be waived explicitly by respondent’s counsel. 28 U.S.C. § 2254(b)(3). A waiver of 2

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.), cert. denied, 478 U.S. 1021 (1986). 

After reviewing the petition for habeas corpus, the court finds that petitioner has

failed to exhaust state court remedies. The claims have not been presented to the California

Supreme Court. Further, there is no allegation that state court remedies are no longer available to

petitioner. Accordingly, the petition should be dismissed without prejudice.

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Good cause appearing, IT IS HEREBY ORDERED that:

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

2. The Clerk of the Court is directed to serve a copy of these findings and

recommendations together with a copy of the petition filed in the instant case on the Attorney

General of the State of California; and 

IT IS HEREBY RECOMMENDED that petitioner's application for a writ of

habeas corpus be dismissed for failure to exhaust state remedies. 

These findings and recommendations will be submitted to the United States

District Judge assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within

twenty days after being served with these findings and recommendations, petitioner may file

written objections with the court. The document should be captioned "Objections to Findings

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and Recommendations." Petitioner is advised that failure to file objections within the specified

time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153

(9th Cir. 1991).

DATED: August 25, 2005.

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tuns2658.103

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