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RIOS v. PEOPLE OF CALIFORNIA

United States District Court, N.D. California


RICHARD A. RIOS, Petitioner,
v.
PEOPLE OF CALIFORNIA, Respondent.

The opinion of the court was delivered by: MAXINE CHESNEY, District Judge

ORDER OF DISMISSAL

Petitioner, a California prisoner, has filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging a state court conviction. He raises three claims in his petition, which he states have not been raised in any other court.

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). The petition is filed on this court's form for habeas petitions. On that form, immediately after the section in which the petitioner is to set forth his claims, is the following direction: "If any of these grounds was not previously presented to any other court, state briefly which grounds were not presented and why." In response, petitioner states "nun [sic] of these grounds where [sic] presented because my attorney said it wouldn't make a difference because the evidence points to me so he just dismissed what I ask him to do." Before petitioner may raise his claims in this court, petitioner must present his claims to the Supreme Court of California. Although he has filed a petition for direct review in that court, he may also file a petition for a writ of habeas corpus. If his attorney will not prepare and file the petition for him, he may seek the assistance of another attorney or prepare and file it himself. 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.

  The request to proceed in forma pauperis is GRANTED.

  This order terminates docket number 2. The Clerk shall close the file.

  IT IS SO ORDERED. JUDGMENT IN A CIVIL CASE

  [] Jury Verdict. This action came before the Court for a trial by jury. The issues have been tried and the jury has rendered its verdict.

  [x] Decision by Court. This action came to trial or hearing before the Court. The issues have been tried or heard and a decision has been rendered.

  IT IS ORDERED AND ADJUDGED 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.

  The request to proceed in forma pauperis is GRANTED.

20040901

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