Opinion
JUDGMENT
SUSAN ILLSTON, Chief District Judge.
This action is dismissed without prejudice to petitioner filing a new petition for writ of habeas corpus after he exhausts his state court remedies.
IT IS SO ORDERED AND ADJUDGED.
ORDER OF DISMISSAL
Mark Norman MacKenzie, a California state inmate incarcerated at the Salinas Valley State Prison, filed this action seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2254. His petition is now before the court for review pursuant to 28 U.S.C. § 2243 and Rule 4 of the Rules Governing Section 2254 Cases. His in forma pauperis application also is before the court for consideration.
MacKenzie states in his petition that he is currently serving a 12-month sentence following his admission to a parole violation charge. He claims that his time credits are not being calculated properly for the service of the parole term. MacKenzie further states that he has not appealed the decision and has not filed any collateral challenge to the time credit decision. He marked on the first page of his petition that his was a "request for emergency relief - no time for 602 appeal process."
Prisoners in state custody who want to challenge either the fact or length of their confinement in federal court by a petition for a writ of habeas corpus 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 issue they seek to raise in federal court. See 28 U.S.C. § 2254(b)(1)(A), (c); Duckworth v. Serrano , 454 U.S. 1, 3 (1981). If available state remedies have not been exhausted as to all claims, the district court must dismiss the petition. See id. at 4-5.
MacKenzie has not filed an appeal or collaterally challenged in state court the decision he now wants this court to set aside in a federal habeas action. MacKenzie cannot bypass the exhaustion requirement by pleading that he cannot obtain relief in state court or in the administrative appeal process in sufficient time to aid him. MacKenzie must file an appeal or collateral challenge in state court and await the outcome of the state court challenge to the time credit decision before presenting his claims in federal court. MacKenzie must present all of his claims to the California Supreme Court to give that court a fair opportunity to rule on the merits of his claims before filing a federal petition for writ of habeas corpus asserting those claims. Until that proceeding is concluded, a habeas petition in this court is premature and must be dismissed. Because he has not exhausted his state court remedies, his petition is DISMISSED.
After MacKenzie exhausts his state court remedies, he may file a new petition for writ of habeas corpus. He is cautioned not to file an amended petition in this action and not to use the case number for this action because this action is being closed today. When he files a new petition, he should put no case number on the first page, and should submit it with the $5.00 filing fee or a completed in forma pauperis application. At that time, the court will give the new petition a new case number.
MacKenzie's in forma pauperis application is DENIED because he has sufficient funds to pay the filing fee. (Docket # 3 and # 4.) MacKenzie shall pay the $5.00 filing fee by April 16, 2004.
IT IS SO ORDERED.