Opinion
No. C 01-02244 MMC (PR)
July 3, 2001
ORDER OF DISMISSAL WITHOUT PREJUDICE
Petitioner, a prisoner of the State of California, has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, in which he challenges the validity of his sentence of twenty-five years to life in state prison. Petitioner states that on June 8, 2000, in San Mateo County, he was convicted of violating a temporary restraining order during a divorce.
More specifically, petitioner claims that he is constitutionally entitled to a sentence of death of the sentence he received.
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); McNeeley v. Arave, 842 F.2d 230, 231 (9th Cir. 1988).
Petitioner does not allege that he has presented his claims to the state courts for review. If available state remedies have not been exhausted, the district court must dismiss the petition. See Rose v. Lundy, 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). Accordingly, this petition is DISMISSED without prejudice to petitioner filing a new federal habeas corpus petition once he has exhausted state remedies. All pending motions are TERMINATED. The clerk shall close the file.
IT IS SO ORDERED.
[x] Decision by Court. This action came to trial or hearing before the Court. The issues have been tried or heard and a decision has been rendered.
IT IS ORDERED AND ADJUDGED this petition is DISMISSED without prejudice to petitioner filing a new federal habeas corpus petition once he has exhausted state remedies. All pending notions are TERMINATED.