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DRISKEL v. DAVIS

United States District Court, Northern District of California


June 4, 2003

ANDREW DRISKEL, PETITIONER,
v.
GRAY DAVIS, ET AL., RESPONDENT.

The opinion of the court was delivered by: Maxine M. Chesney, United States District Judge

ORDER OF DISMISSAL

Petitioner, currently incarcerated in San Quentin State Prison, has filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging the alleged extension of his parole by the California Board of Prison Terms ("BPT"). Petitioner indicates in his petition that he has not presented his claims to the California Court of Appeal or 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); McNeeley v. Arave, 842 F.2d 230, 231 (9th Cir. 1988). Petitioner states in his petition that he has exhausted his claims by writing a letter to the Parole Division of the California Department of Corrections ("CDC"). In its response to that letter, the CDC informed petitioner that administrative appeals of parole decisions are properly made to the BPT, not the CDC. Before he may raise his claims in this Court, after exhausting his administrative appeals, petitioner must also 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 state remedies by presenting his claims to the highest state court.

All pending motions are TERMINATED and the clerk shall close the file.

IT IS SO ORDERED.

20030604

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