Opinion
No. C 02-2373 SI (pr).
June 18, 2003
JUDGMENT
This action is dismissed without prejudice for failure to exhaust state court remedies before filing the petition for writ of habeas corpus.
IT IS SO ORDERED AND ADJUDGED.
ORDER OF DISMISSAL
Kenoth Raymond Bishop filed a pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 which appears to challenge either a 1997 conviction from Santa Barbara County Superior Court or a decision on December 3, 1999 to transfer his parole to a place 275 miles from his home, doctor and relatives. See Petition, p. 3. Regardless of whether Bishop is challenging the 1997 conviction or the 1999 parole decision, his petition makes clear that he has not completed his appeal and has not filed a petition for writ of habeas corpus in the California Supreme Court. See id. at 4, 5 and 7.
Bishop did not exhaust his state court remedies before filing his federal habeas petition. Prisoners in state custody who wish to challenge collaterally in federal habeas proceedings either the fact or length of their confinement are first required to exhaust state judicial remedies, either on direct appeal or through collateral proceedings, by presenting the highest state court available with a fair opportunity to rule on the merits of each and every claim they seek to raise in federal court. See 28 U.S.C. § 2254(b),(c); Rose v. Lundy, 455 U.S. 509, 515-16 (1982);Duckworth v. Serrano, 454 U.S. 1, 3 (1981). The exhaustion-of-state-remedies doctrine reflects a policy of federal-state comity to give the state "the initial `opportunity to pass upon and correct alleged violations of its prisoners' federal rights.'" Picard v. Connor, 404 U.S. 270,275 (1971) (citations omitted). A federal district court must dismiss a federal habeas petition containing any claim as to which state remedies have not been exhausted. See Rose v. Lundy, 455 U.S. at 522. Bishop has not yet presented his claims to the Supreme Court of California for its consideration.
This action is dismissed because Bishop did not exhaust state court remedies before filing the petition. The dismissal is without prejudice to petitioner filing a new petition after he exhausts his state court remedies as to every claim he presents in his federal petition.
Petitioner is cautioned that any federal habeas petition challenging his conviction from the Santa Barbara County Superior Court should be filed in the U.S. District Court for the Central District of California rather than in the Northern District of California.
Petitioner's in forma pauperis application is DENIED as unnecessary because Bishop paid the filing fee when he filed this action. (Docket #2.) Because this action is being dismissed, Bishop's request for appointment of counsel is DENIED. (Docket #3.)
IT IS SO ORDERED.