Opinion
3:15-cv-00361-RCJ-WGC
11-09-2015
DENNIS K. SUDBERRY, Petitioner, v. ISIDRO BACA, et al., Respondents.
ORDER
Petitioner, a Nevada prisoner, has filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241 (ECF No. 2) and has paid the filing fee (see ECF No. 1). The court has reviewed the petition pursuant to the Rules Governing Habeas Cases, and the petition must be dismissed as unexhausted.
As a prudential matter, courts require that habeas petitioners exhaust all available judicial and administrative remedies before seeking relief under § 2241. Ward v. Chavez, 678 F.3d 1042, 1045 (9 Cir. 2012); Castro-Cortez v. INS, 239 F.3d 1037, 1047 (9th Cir.2001), abrogated on other grounds, Fernandez-Vargas v. Gonzales, 548 U.S. 30 (2006). This exhaustion requirement is subject to waiver in § 2241 cases because it is not a "jurisdictional prerequisite." Id. Typically, exhaustion can be waived "if pursuing those [administrative] remedies would be futile." Fraley v. U.S. Bureau of Prisons, 1 F.3d 924, 925 (9th Cir.1993).
Petitioner indicates on the face of his petition that while he "went through the grievance system," he has not pursued state habeas relief on his claims (ECF No. 2, p. 3). Thus, the present action will be dismissed without prejudice because petitioner has failed to exhaust judicial remedies. Upon exhausting his claims, petitioner may file a new habeas petition pursuant to 28 U.S.C. § 2241 on the form required by this court in a new action with either the $5.00 filing fee or a completed application to proceed in forma pauperis on the proper form with both an inmate account statement for the past six months and a properly executed financial certificate.
Petitioner at all times remains responsible for properly exhausting his claims, for calculating the running of the federal limitation period as applied to his case, and for properly commencing a timely-filed federal habeas action.
IT IS THEREFORE ORDERED that § 2241 petition is DISMISSED without prejudice.
IT IS FURTHER ORDERED that a certificate of appealability is DENIED, as jurists of reason would not find the court's dismissal of this unexhausted action without prejudice to be debatable or incorrect.
IT IS FURTHER ORDERED that the Clerk shall send petitioner two copies each of an application form to proceed in forma pauperis for incarcerated persons and a Section 2241 habeas petition form, one copy of the instructions for each form, and a copy of the papers that he submitted in this action.
IT IS FURTHER ORDERED that the Clerk shall ENTER JUDGMENT accordingly and close this case.
DATED: This 9 day of November, 2015.
/s/_________
UNITED STATES DISTRICT JUDGE