United States District Court, N.D. California
March 22, 2004.
CLARENCE C. BROWN, Petitioner,
The opinion of the court was delivered by: MAXINE CHESNEY, District Judge
ORDER OF DISMISSAL; GRANTING LEAVE TO PROCEED
IN FORMA PAUPERIS
(Docket No. 2)
Petitioner, currently incarcerated at San Quentin State Prison, has
filed a pro se petition for a writ of habeas corpus pursuant to
28 U.S.C. § 2254, challenging a conviction and sentence obtained in
Alameda County Superior Court in July 2003. Petitioner indicates that he
has not filed a direct appeal or other petition regarding this conviction
in the state courts.
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). 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.
This order terminates Docket No. 2, as well as any other pending
The Clerk shall close the file.
IT IS SO ORDERED.
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