United States District Court, N.D. California
October 18, 2005.
CLIFFORD KEYS, SR., Peititoner,
BILL LOCKYER, et al., Respondents.
The opinion of the court was delivered by: MAXINE CHESNEY, District Judge
ORDER OF DISMISSAL; GRANTING LEAVE TO PROCEED IN FORMA PAUPERIS
Petitioner, a California prisoner proceeding pro se, filed the
above-titled petition for a writ of habeas corpus pursuant to
28 U.S.C. § 2254. It is clear from the petition, however, that
petitioner has not presented his claims to the Supreme Court of
A district court shall "award the writ or issue an order
directing the respondent to show cause why the writ should not be
granted, unless it appears from the application that the
applicant or person detained is not entitled thereto."
28 U.S.C. § 2243. Summary dismissal is appropriate where the allegations in
the petition are vague or conclusory, palpably incredible, or
patently frivolous or false. See Hendricks v. Vasquez,
908 F.2d 490, 491 (9th Cir. 1990) (quoting Blackledge v. Allison,
431 U.S. 63, 75-76 (1977)).
Prisoners in state custody who wish to challenge either the
fact or length of their confinement in federal court by a
petition for a writ of habeas corpus are first required to exhaust state judicial remedies, either on direct appeal or
through state 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. See 28 U.S.C. § 2254(b),(c); Duckworth v. Serrano,
454 U.S. 1, 3 (1981). If available state remedies have not been
exhausted as to all claims, the district court must dismiss the
petition. See id. at 4-5. Here, petitioner filed a form
petition in which he indicates that he has not presented the
claims raised herein to any of the California courts. (See Pet.
at 4-6.) Petitioner must present his claims to the Supreme Court
of California prior to raising them in a habeas petition in this
In light of the foregoing, the instant petition is DISMISSED
for failure to exhaust state court remedies. This dismissal is
without prejudice to petitioner's returning to federal court
after exhausting his state court remedies by presenting his
claims to the Supreme Court of California. See Johnson v.
Lewis, 929 F.2d 460, 464 (9th Cir. 1991).
The application to proceed in forma pauperis is GRANTED.
This order terminates Docket Nos. 3 and 5.
The Clerk shall close the file.
IT IS SO ORDERED.
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