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REMEDIO v. CARY

United States District Court, N.D. California


July 12, 2004.

ROMIRICIO REMEDIO, Petitioner,
v.
THOMAS CARY, warden, Respondent.

The opinion of the court was delivered by: SUSAN ILLSTON, District Judge

JUDGMENT

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 exhausted.

  The Clerk shall close the file.

  IT IS SO ORDERED.


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