Opinion
No. C 03-2374 SI (pr).
June 17, 2003.
ORDER OF DISMISSAL
Kenoth Raymond Bishop, now living in Salinas, California, filed a pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 attacking a conviction in Monterey County Superior Court and a sentence imposed on June 7, 2002. His petition states that he is not in custody serving any sentence. Petition, p. 3. His petition also states that he did not appeal his conviction, id, at 4, and it appears that he did not file any state habeas petitions challenging his conviction, see id. at 4-5. The petition has two fundamental problems which require its dismissal.
First, Bishop pled that he was not in custody at the time he filed his petition. The federal writ of habeas corpus is only available to persons "in custody" at the time the petition is filed. See 28 U.S.C. § 2241(c), 2254(a); Carafas v. LaVallee, 391 U.S. 234, 238 (1968). This requirement is jurisdictional. See id. A petitioner who files a habeas petition after he has fully served his sentence and who is not subject to court supervision is not "in custody" for the purposes of this court's subject matter jurisdiction and his petition is therefore properly denied. See De Long v. Hennessey, 912 F.2d 1144, 1146 (9th Cir.), cert. denied, 489 U.S. 1001 (1990).
Second, 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 for lack of subject matter jurisdiction because Bishop is not in custody on the conviction or sentence he seeks to challenge. This action is dismissed on the alternative ground that Bishop did not exhaust state court remedies before filing the petition. The court will dismiss the petition 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, but petitioner is cautioned that filing a new action will be pointless unless he can satisfy the custody requirement as well as the exhaustion requirement at the time of filing the new petition.
IT IS SO ORDERED.
JUDGMENT
This action is dismissed for lack of subject matter jurisdiction and for failure to exhaust state court remedies before the habeas petition was filed.
IT IS SO ORDERED AND ADJUDGED.