ORDER DISMISSING PETITION WITHOUT PREJUDICE AS UNEXHAUSTED (Docket nos. 9, 12, 13)
The opinion of the court was delivered by: Claudia Wilken United States District Judge
Petitioner Frederick Lee Baker is a prisoner of the State of California who is incarcerated at the Correctional Training Facility at Soledad. He filed two habeas corpus petitions pursuant to 28 U.S.C. § 2254 challenging the constitutional validity of determinations made by the Board of Prison Terms to find him unsuitable for parole at hearings held in 2001 and 2003. Petitioner alleged that he had exhausted his State remedies by presenting these claims to the California Supreme Court. In an Order dated May 5, 2005, the Court consolidated the two petitions into case number C 04-3753 and ordered Respondents to show cause why the requested relief should not be granted. Respondents have filed a motion to dismiss the petition on the ground that Petitioner fails to present a constitutionally cognizable claim for relief. Petitioner has filed an opposition to the motion to dismiss and Respondent has filed a reply.
The Court need not reach the issue raised by the motion to dismiss because in his opposition papers Petitioner makes clear that his claims are unexhausted. Specifically, on September 24, 2004, at his seventh parole suitability hearing, held subsequent to the hearings challenged in the present petition, Petitioner was found suitable for parole. Due to a malfunction in the recording equipment, however, the decision portion of the September 2004 hearing could not be transcribed. Because the Decision Review Unit of the Board is required to review a complete record of the hearing, including the decision pages, the Decision Review Unit disapproved the proposed September 2004 decision and ordered a rehearing. The rehearing is currently scheduled for October 4, 2005.
On January 27, 2005, Petitioner filed with the Monterey County Superior Court a petition for a writ of habeas corpus challenging the Decision Review Unit's disapproval of the decision to grant parole. On March 25, 2005, the court ordered Respondents to answer the petition. According to Petitioner's July 19, 2005, opposition to Respondent's motion to dismiss the present petition, that State habeas petition is still pending.
The exhaustion requirement is not satisfied if there is a pending proceeding in State court which could result in the relief requested, even if on some ground other than the one raised in the federal petition. See Sherwood v. Tomkins, 716 F.2d 632, 634 (9th Cir. 1983). If the State court grants Petitioner's petition challenging the Decision Review Unit's disapproval of the decision to grant parole, the result would be Petitioner's release on parole. Accordingly, the exhaustion requirement is not satisfied.
If available State remedies have not been exhausted as to all claims, the district court must dismiss the petition. See Rose v. Lundy, 455 U.S. 509, 510 (1982); Guizar v. Estelle, 843 F.2d 371, 372 (9th Cir. 1988). A dismissal solely for failure to exhaust is not a bar to returning to federal court after exhausting available State remedies. See Trimble v. City of Santa Rosa, 49 F.3d 583, 586 (9th Cir. 1995).
For the foregoing reasons, Respondent's motion to dismiss is DENIED as moot and the petition is DISMISSED without prejudice for failure to exhaust State remedies.
The Clerk of the Court shall TERMINATE all pending motions, enter judgment and close the file.
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