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REMEDIO v. CARY
July 12, 2004.
ROMIRICIO REMEDIO, Petitioner,
THOMAS CARY, warden, Respondent.
The opinion of the court was delivered by: SUSAN ILLSTON, District Judge
The petition for writ of habeas corpus is dismissed without
prejudice to petitioner filing new habeas actions after available
state judicial remedies are exhausted.
IT IS SO ORDERED AND ADJUDGED. ORDER OF DISMISSAL
Romiricio Remedio has filed a pro se petition for 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.
Remedio is in prison serving a sentence of 15 years to life in
prison for a 1981 murder conviction. His petition does not
challenge his conviction. Indeed, it cannot be determined quite
what Remedio is challenging in his current habeas petition. He
alleges that he received a rules violation report, was put in
administrative segregation and, as a result, was denied parole in
March 2003. The court cannot determine whether he is challenging
the rule violation report, the resulting hearing, or the parole
decision. He cannot challenge several different decisions in a
single habeas petition; he must challenge one decision per habeas
petition. For example, if he wants to challenge both the denial
of parole and the placement in administrative segregation, he has
to file two separate habeas petitions, with one challenging the
decision denying him parole and the other one challenging the
decision placing him in administrative segregation. Separate petitions are required because exhaustion, venue, procedural
default issues, mootness concerns*fn1 and remedies are
different for each decision. The court will not grant leave to
amend for Remedio to sort out which decision he wants to
challenge in this petition because his petition discloses a fatal
flaw regardless of which decision he wants to challenge: he has
not exhausted state court remedies.
Prisoners in state custody who wish to challenge either the
fact or length of their confinement in federal court by a
petition for 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.
28 U.S.C. § 2254(b), (c); Granberry v. Greer, 481 U.S. 129, 133-34 (1987).
Remedio has not done so; nor has he presented any exceptional
circumstances to excuse his doing so. See id. He must present
his claims concerning the March 2003 decision to deny him parole
and the administrative segregation decision to the California
Supreme Court and give that court an opportunity to rule on his
claims before presenting these claims in federal habeas
petitions. The petition must be dismissed as unexhausted.
The court recently granted summary judgment in Remedio's civil
rights action addressing some of the same claims raised in his
habeas petition. See July 1, 2004 Order Granting Defendants'
Motions For Summary Judgment in Remedio v. Woodford, No. C
03-2212 SI. The court expects Remedio to explain in any future
habeas petition why he should be able to relitigate those claims
already decided against him. For the foregoing reasons, the petition is DISMISSED without
prejudice to Remedio filing new habeas actions challenging each
of the decisions after available state judicial remedies are
The Clerk shall close the file.
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