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1

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

JOSEPH STEVEN THOMASON,

Petitioner, No. CIV S-04-1996 GEB KJM P

vs.

D.L. RUNNELS, 

Respondent. ORDER

 /

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

corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges his July 1, 2002 convictions for

assault with a deadly weapon and threatening to inflict great bodily injury and the finding that he

had suffered prior felony convictions. 

Petitioner has requested leave to proceed without paying the filing fee. 

Examination of the in forma pauperis affidavit reveals that petitioner is unable to afford the costs

of suit. Accordingly, the request for leave to proceed in forma pauperis is granted. See 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 must

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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). 

2

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

Petitioner raises four claims in his petition. The first issue flows from the trial

court’s refusal to strike one of petitioner’s prior convictions. The second is called “judicial

error,” but includes challenges to the sufficiency of the evidence, the court’s alleged awareness

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2

 Brady v. Maryland, 373 U.S. 83 (1963). 

3 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,

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). Petitioner is advised a portion of the limitation

period in his case appears to have already elapsed. 

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

3

that some of the testimony against petitioner was perjured, and the court’s purported bias in

questioning the witnesses. The third ground for relief, prosecutorial misconduct, is based on a 

purported Brady violation2 and the use of perjured testimony. The fourth claim is ineffective

assistance of appellate counsel. 

After reviewing the record in this action, the court finds that petitioner has failed

to exhaust state court remedies as to claims two, three, and four, which petitioner concedes in a

letter filed with his petition. Although it appears he is attempting to exhaust these claims, they

will not be completely exhausted until the California Supreme Court has been given an

opportunity to rule on his claims; the denial of his habeas petition by the Superior Court and the

Third Appellate District does not satisfy the exhaustion requirement. Accordingly, the petition is

a mixed petition containing both exhausted and unexhausted claims and must be dismissed. 

Petitioner may now proceed in one of two ways. He may dismiss the entire

petition in order to exhaust the unexhausted claims in state court by presenting those claims

using the appropriate procedure to the California courts. He is advised to allege with

particularity all the facts concerning these claims. After returning to the state court his claims

may then be considered by the federal court if they are timely filed. Petitioner’s second

alternative is file a new petition in this court raising only the exhausted claims. Id.

3

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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).

Compare Calderon v. United States District Court, 134 F.3d 981, 986-87 (9th Cir.) (reviewing a

variation in which unexhausted claims are stricken from the petition), cert. denied, 520 U.S. 920

(1998). The availability of the stay and abeyance 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.

4

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 request to proceed in forma pauperis is granted. 

2. Within thirty days of the date of this order, petitioner must inform the court

how he wishes to proceed. Failure to respond to this order will result in a recommendation that

the action be dismissed. 

3. Petitioner’s September 24, 2004 request for appointment of counsel is denied

without prejudice to a renewal of the motion at a later stage of the proceedings.

4. Petitioner’s November 15, 2004 and December 23, 2004 requests to hold the

petition in abeyance pending exhaustion of state remedies are denied without prejudice. 

DATED: May 4, 2005.

______________________________________

UNITED STATES MAGISTRATE JUDGE

2/kf

thom1996.110 

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