Opinion
22-cv-03577-JSC
07-20-2022
MARCUS A. PRICE, Plaintiff, v. SAN FRANCISCO COURT, Defendant.
ORDER OF DISMISSAL
JACQUELINE SCOTT CORLEY UNITED STATES DISTRICT JUDGE
Petitioner, a California state inmate, has filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.
An application for a federal writ of habeas corpus filed by a prisoner who is in state custody pursuant to a judgment of a state court may not be granted unless the prisoner has first exhausted state judicial remedies, either by way of a direct appeal or in collateral proceedings, by presenting the highest state court available with a fair opportunity to rule on the merits of each and every issue he or she seeks to raise in federal court. See 28 U.S.C. §§ 2254(b),(c); Granberry v. Greer, 481 U.S. 129, 133-34 (1987). The petition states that Petitioner did not file an appeal from his conviction or sentence, nor has he sought review in the California Supreme Court. (ECF No. 1 at 5.) Petitioner also states that the only petition, application, or motion he has filed is in the Napa County Superior Court, and that appears to concern his medication in prison, not his conviction or sentence. (Id. at 6.) Finally, Petitioner states that he has pursued administrative remedies (id.), but he need not to do so to exhaust claims for federal habeas relief, which only requires exhaustion of available state “court” remedies, see 28 U.S.C. §§ 2254(b)(1)(a),(b)(2). It is therefore clear from the face of the petition that Petitioner has not exhausted his state court remedies; nor has he presented any exceptional circumstances to excuse his doing so.
The petition is therefore DISMISSED without prejudice to refiling after available state judicial remedies are exhausted. Trimble v. City of Santa Rosa, 49 F.3d 583, 586 (9th Cir. 1995) (a dismissal solely for failure to exhaust is not a bar to returning to federal court after exhausting available remedies in the state courts).
The clerk shall enter judgment and close the file.
IT IS SO ORDERED.