ORDER OF DISMISSAL WITH LEAVE TO AMEND AND GRANTING LEAVE TO PROCEED IN FORMA PAUPERIS (Docket nos. 2, 4).
The opinion of the court was delivered by: Claudia Wilken United States District Judge
Petitioner Gregory L. Bedford, a State prisoner incarcerated at San Quentin State Prison, has filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 in which he seeks leave to proceed in forma pauperis. Venue is proper because Petitioner is challenging the validity of a conviction obtained in Santa Clara County Superior Court, which is located in this judicial district. See 28 U.S.C. § 2241(d).
According to the allegations in the petition a jury found Petitioner guilty of resisting an executive officer in the performance of his duties (California Penal Code section 69). On June 1, 2001, Petitioner was sentenced to twenty-five years to life in State prison. The California Court of Appeal affirmed the judgment of conviction in 2002, and the California Supreme Court denied review, also in 2002. Thereafter, Petitioner filed a State petition for a writ of habeas corpus which the Santa Clara County Superior Court denied without prejudice on July 17, 2003. Petitioner then filed an amended habeas corpus petition which the Santa Clara County Superior Court denied on October 16, 2003. The California Court of Appeal for the Sixth Appellate District denied Petitioner's habeas corpus petition on January 14, 2004. The California Supreme Court denied a habeas corpus petition raising the same claims on December 1, 2004.
On January 7, 2005, Petitioner filed a habeas corpus petition with the California Supreme Court raising two new claims. When Petitioner filed his federal habeas corpus petition on January 27, 2005, he noted that the State petition was still pending.
Prisoners in State custody who wish to challenge in federal habeas proceedings either the fact or length of their confinement are first required to exhaust State judicial remedies 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). The exhaustion requirement is not satisfied if there is a challenge to the fact or length of confinement pending in State court. See Sherwood v. Tomkins, 716 F.2d 632, 634 (9th Cir. 1983). 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. at 510; 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).
Because Petitioner's State habeas petition was pending before the California Supreme Court when he filed the present petition it appears that his petition is unexhausted for purposes of federal habeas corpus review. Accordingly, the petition must DISMISSED.
If the California Supreme Court has ruled on the petition since Petitioner last communicated with the Court, however, and he does not have any other State habeas corpus petitions pending, he may file an amended petition so alleging within thirty days from the date of this Order. Petitioner should attach a copy of the California Supreme Court's ruling to his amended petition if possible.
In addition, Petitioner must clarify in his amended petition each claim he is raising in his federal petition. If he seeks to add new claims based on the claims addressed by the California Supreme Court he must state so expressly. Petitioner's failure to file an amended petition will result in the dismissal of this petition without prejudice.
For the foregoing reasons the Court orders as follows:
1. Leave to proceed in forma pauperis is GRANTED. ...