Opinion
No. C 01-14O3 MMC
May 7, 2001
ORDER OF DISMISSAL WITHOUT PREJUDICE
Petitioner, a California prisoner proceeding pro se, has filed a habeas corpus petition pursuant to 28 U.S.C. § 2254. Petitioner was convicted in 1999 of burglary and related offenses in Santa Clara County following a guilty plea. According to the petition, petitioner filed a direct appeal in the Supreme Court of California, which was denied on December 28, 1999. Petitioner indicates that the claims in the instant federal petition were not raised in that appeal, and that she has not filed any habeas petitions in the Supreme Court of California.
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). The petition is clear that petitioner has had one appeal to the Supreme Court of California, and that appeal did not contain the claims presented here. Petitioner has not exhausted the claims in this petition because she never presented them to the Supreme Court of California. 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, the petition is DISMISSED without prejudice to refiling a petition once petitioner has exhausted her state court remedies by presenting the claims to the Supreme Court of California. All pending motions are TERMINATED. The Clerk shall close the file.
IT IS SO ORDERED.