United States District Court, N.D. California
December 2, 2005.
MARK BRADY, Petitioner,
GEORGE LAYMAN, Commissioner; et al., Respondents.
The opinion of the court was delivered by: SUSAN ILLSTON, District Judge
ORDER OF DISMISSAL
Mark Brady has filed a pro se petition for writ of habeas
corpus pursuant to 28 U.S.C. § 2254, in which he challenges the
revocation of his parole. 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.
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).
Brady has not done so; nor has he presented any exceptional
circumstances to excuse his doing so. See id.
Brady's petition shows that he has not filed a petition for
review or a petition for writ of habeas corpus in the California
Supreme Court. The California Supreme Court has not been given a fair opportunity to rule on the merits of his claims concerning
his parole revocation. Brady must file a state habeas petition
(or a petition for review, if it is not too late) and give the
California Supreme Court a fair opportunity to rule on the merits
of all his claims before presenting his claims in a federal
For the foregoing reasons, the petition is DISMISSED without
prejudice to Brady filing a new habeas action after available
state judicial remedies are exhausted. The dismissal also is
without prejudice to Brady filing a motion for relief in
Valdivia v. Schwarzenegger, E.D. Cal. No. Civ. S-94-0671
LKK\GGH if he believes there has been a violation of an order in
that action. In light of the dismissal of this action for failure
to exhaust, Brady's motion to treat the petition as an emergency
situation is DENIED. (Docket # 7.)
The in forma pauperis application is DENIED. (Docket # 2.)
The clerk shall close the file.
IT IS SO ORDERED.
© 1992-2006 VersusLaw Inc.