Opinion
No. C 04-0109 MMC (PR)
March 22, 2004
ORDER OF DISMISSAL; GRANTING LEAVE TO PROCEED IN FORMA PAUPERIS (Docket No. 2)
Petitioner, currently incarcerated at San Quentin State Prison, has filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging a conviction and sentence obtained in Alameda County Superior Court in July 2003. Petitioner indicates that he has not filed a direct appeal or other petition regarding this conviction in the state courts.
Prisoners in state custody who wish to challenge collaterally in federal habeas proceedings the 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); McNeeley v. Arave, 842 F.2d 230, 231 (9th Cir. 1988). Before he may raise his claims in this Court, petitioner must present his claims in the state courts, including the Supreme Court of California. As petitioner has not presented his claims to the highest state court, he has not exhausted his state remedies, and the petition must be dismissed. See Rose, 455 U.S. at 510. A dismissal solely for failure to exhaust is not a bar to petitioner's returning to federal court after exhausting available state remedies. See Trimble v. City of Santa Rosa, 49 F.3d 583, 586 (9th Cir. 1995).
Accordingly, this petition is DISMISSED without prejudice to petitioner's filing a new federal habeas petition once he has exhausted his state remedies by presenting his claims to the highest state court.
Leave to proceed in forma pauperis is GRANTED.
This order terminates Docket No. 2, as well as any other pending motions.
The Clerk shall close the file.
IT IS SO ORDERED.