Opinion
No. C 03-3745 MMC (PR) (Docket No. 2)
October 2, 2003
ORDER OF DISMISSAL AND GRANTING LEAVE TO PROCEED IN FORMA PAUPERIS
Petitioner, currently incarcerated at the Alameda County Jail, has filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging a murder conviction obtained in May 2003. Petitioner states in his petition that he has only recently appealed his conviction, which appeal has not been decided, and that he has not sought any form of relief in the Supreme Court of California.
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), (c); Rose v. Lundy, 455 U.S. 509, 515-16 (1982);Duckworth v. Serrano, 454 U.S. 1, 3 (1981); McNeelev v. Arave, 842 F.2d 230, 231 (9th Cir. 1988). Before he may raise his claims in this Court, petitioner must present his claims in the state courts, including the Supreme Court of California. As petitioner has not presented his claims to the highest state court, he has not exhausted his state remedies, and 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.
Leave to proceed in forma pauperis is GRANTED.
The clerk shall close the file and terminate docket number 2 and all other pending motions.