Opinion
No. C 03-1279 MMC (PR)
April 7, 2003
ORDER OF DISMISSAL; GRANTING LEAVE TO PROCEED IN FORMA PAUPERIS
Petitioner, currently incarcerated in San Quentin State Prison, has filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, arguing that the California Board of Prison Terms violated his right to due process in connection with a parole revocation hearing. See Morrissey v. Brewer, 408 U.S. 471 (1972) (setting forth due process requirements for revocation of parole).
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), ©); 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). California inmates may seek direct review of a parole revocation decision by filing an appeal with the Board of Prison Terms.See Cal. Code Regs. § 2050 et seq. Thereafter, the prisoner may file a petition for a writ of habeas corpus in state court. Petitioner indicates in his petition that he has filed an "appeal" of the parole revocation decision. Because such appeals are filed with the Board of Prison Terms, this appeal does not satisfy the requirement that he present his claims to the highest state court. Petitioner also alleges in his petition that he has filed his claims in a petition for a writ of habeas corpus in state court, but states that the only court in which he sought such review is the Marin County Superior Court. To exhaust his state remedies, petitioner must present his claims to the Supreme Court of California, the highest state court in California. Because petitioner has not exhausted his state remedies, 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. The application to proceed in forma pauperis is GRANTED and no fee is due.
All pending motions are TERMINATED.
The clerk shall close the file.
IT IS SO ORDERED.