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COTTONHAM v. SANTA CLARA COUNTY

United States District Court, N.D. California


July 9, 2004.

MARK COTTONHAM, Petitioner,
v.
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 exhausted.

  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.

  SO ORDERED.

20040709

© 1992-2004 VersusLaw Inc.



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