Opinion
ORDER DISMISSING PETITION WITHOUT PREJUDICE AS UNEXHAUSTED AND DENYING LEAVE TO PROCEED IN FORMA PAUPERIS
CLAUDIA WILKEN, District Judge.
Petitioner George Carnegie pled guilty to murder charges in 1995 in Alameda County Superior Court. No appeal was taken. According to Petitioner he was told by the court, his attorney and the district attorney that he would serve only seven years in prison. However, Petitioner has been in prison for more than seven years. He alleges that his continuing custody is unconstitutional because his plea was not made knowingly and intelligently. Specifically, he maintains that when he pled guilty his reading ability was below third grade level and he was not informed of and did not understand the right to a jury trial. He asserts that his plea was coerced in violation of his Sixth Amendment right to the effective assistance of counsel. Petitioner has not presented this claim to any State court.
Prisoners in State custody who wish to challenge in federal habeas proceedings either the fact or length of their confinement are first required to exhaust State judicial remedies 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). The State's highest court must be given an opportunity to rule on the claims, even if review is discretionary. See O'Sullivan v. Boerckel , 526 U.S. 838, 845 (1999) (petitioner must invoke "one complete round of the State's established appellate review process."). If available State remedies have not been exhausted as to all claims, the district court must dismiss the petition. See Rose , 455 U.S. at 510; Guizar v. Estelle , 843 F.2d 371, 372 (9th Cir. 1988). A dismissal solely for failure to exhaust is not a bar to returning to federal court after exhausting available State remedies. See Trimble v. City of Santa Rosa , 49 F.3d 583, 586 (9th Cir. 1995).
Because Petitioner has not presented the State's highest court with an opportunity to rule on the merits of his claim, his petition is unexhausted for purposes of federal habeas corpus review. Accordingly, the petition is DISMISSED without prejudice. Leave to proceed in forma pauperis is DENIED. The Clerk of the Court shall enter judgment and close the file.
IT IS SO ORDERED.
JUDGMENT
Pursuant to the dismissal Order signed today, the petition is DISMISSED WITHOUT PREJUDICE as unexhausted. 28 U.S.C. § 2254.
IT IS SO ORDERED.