United States District Court, N.D. California
July 9, 2004.
MARK COTTONHAM, Petitioner,
SANTA CLARA COUNTY, et al., Respondent(s).
The opinion of the court was delivered by: VAUGHN WALKER, District Judge
ORDER OF DISMISSAL
(Doc # 2)
Petitioner seeks a writ of habeas corpus under 28 U.S.C. § 2254
challenging a 2002 conviction from the Superior Court of the
State of California in and for the County of Santa Clara. Among
other things, he claims that the government has breached the
terms of the underlying plea agreement.
Prisoners in state custody who wish to challenge collaterally
in federal habeas corpus proceedings either the fact or 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).
Petitioner has not done so. He has not presented the Supreme
Court of California with an opportunity to rule on his claim(s).
See O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999) (state's
highest court must be given opportunity to rule on claims even if
review is discretionary); Larche v. Simons, 53 F.3d 1068, 1071-72
(9th Cir 1995) (Supreme Court of California must be given at least one
opportunity to review state prisoners' federal claims). The
petition for a writ of habeas corpus therefore is DISMISSED
without prejudice to refiling after state judicial remedies are
The clerk shall enter judgment in accordance with this order,
terminate all pending motions as moot (see, e.g., doc # 2) and
close the file. No fee is due.
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