United States District Court, N.D. California
March 5, 2004.
MARK NORMAN MACKENZIE, Petitioner
SALINAS VALLEY STATE PRISON WARDEN LAMARQUE, WARDEN LAMARQUE, Respondent
The opinion of the court was delivered by: SUSAN ILLSTON, District Judge
This action is dismissed without prejudice to petitioner filing a new
petition for writ of habeas corpus after he exhausts his state court
IT IS SO ORDERED AND ADJUDGED.
ORDER OF DISMISSAL
Mark Norman MacKenzie, a California state inmate incarcerated at the
Salinas Valley State Prison, filed this action seeking a writ of habeas
corpus pursuant to 28 U.S.C. § 2254. His petition is now before the
court for review pursuant to 28 U.S.C. § 2243 and Rule 4 of the
Rules Governing Section 2254 Cases. His in forma pauperis application
also is before the court for consideration.
MacKenzie states in his petition that he is currently serving a
12-month sentence following his admission to a parole violation charge.
He claims that his time credits are not being calculated properly for the
service of the parole term. MacKenzie further states that he has not
appealed the decision and has not filed any collateral challenge to the
time credit decision. He marked on the first page of his petition that
his was a "request for emergency relief no time for 602 appeal process."
Prisoners in state custody who want to challenge either the fact or
length of their confinement in federal court by a petition for a writ of
habeas corpus 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 issue they seek to raise in federal
court. See 28 U.S.C. § 2254(b)(1)(A), (c); Duckworth
v. Serrano, 454 U.S. 1, 3 (1981). If available state remedies have
not been exhausted as to all claims, the district court must dismiss the
petition. See id. at 4-5.
MacKenzie has not filed an appeal or collaterally challenged in state
court the decision he now wants this court to set aside in a federal
habeas action. MacKenzie cannot bypass the exhaustion requirement by
pleading that he cannot obtain relief in state court or in the
administrative appeal process in sufficient time to aid him. MacKenzie
must file an appeal or collateral challenge in state court and await the
outcome of the state court challenge to the time credit decision before
presenting his claims in federal court. MacKenzie must present all of his
claims to the California Supreme Court to give that court a fair
opportunity to rule on the merits of his claims before filing a federal
petition for writ of habeas corpus asserting those claims. Until that
proceeding is concluded, a habeas petition in this court is premature and
must be dismissed. Because he has not exhausted his state court remedies,
his petition is DISMISSED.
After MacKenzie exhausts his state court remedies, he may file a new
petition for writ of habeas corpus. He is cautioned not to file
an amended petition in this action and not to use the case number for
this action because this action is being closed today. When he files a
new petition, he should put no case number on the first page, and should
submit it with the $5.00 filing fee or a completed in forma
pauperis application. At that time, the court will give the new
petition a new case number.
MacKenzie's in forma pauperis application is DENIED because
he has sufficient funds to pay the filing fee. (Docket # 3 and # 4.)
MacKenzie shall pay the $5.00 filing fee by April 16, 2004.
IT IS SO ORDERED.
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