The opinion of the court was delivered by: Dean D. Pregerson United States District Judge
MEMORANDUM AND ORDER DISMISSING PETITION FOR WRIT OF HABEAS CORPUS
On July 6, 2012, Billy Ray Redding (hereinafter referred to as "Petitioner") filed a "Petition for Writ of Habeas Corpus by a Person in State Custody" in the United States District Court for the Central District of California. On January 8, 2011, in Ventura County Superior Court, Petitioner was found to be a Sexually Violent Predator ("SVP") and was committed to an indeterminate term in a state mental institution. (See Petition at 2.)
It appears conclusively from the face of the Petition that state remedies have not been exhausted. Petitioner alleges that he filed an appeal in the California Court of Appeal that is still pending. (Petition at 2.) Petitioner has not filed an appeal in the California Supreme Court; thus, the State courts have not been given an opportunity to rule on Petitioner's contentions. (See Petition at 3-5.)
A federal court will not review a state prisoner's petition for writ of habeas corpus unless it appears that the prisoner has exhausted available state remedies on each and every claim presented.
28 U.S.C. §2254(b) and (c); see O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999); Rose v. Lundy, 455 U.S. 509, 522 (1982). "For reasons of federalism, 28 U.S.C. §2254 requires federal courts to give the states an initial opportunity to correct alleged violations of its prisoners' federal rights." Kellotat v. Cupp, 719 F.2d 1027, 1029 (9th Cir. 1983).
Exhaustion requires that the prisoner's contentions be fairly presented to the highest court of the state. Libberton v. Ryan, 583 F.3d 1147, 1164 (9th Cir. 2009), cert. denied, 130 S.Ct. 3412 (2010). A claim has not been fairly presented unless the prisoner has described in the state court proceedings both the operative facts and the federal legal theory on which his claim is based. See Anderson v. Harless, 459 U.S. 4, 6 (1982); Pappageorge v. Sumner, 688 F.2d 1294 (9th Cir. 1982), cert. denied, 459 U.S. 1219 (1983).
ACCORDINGLY, IT IS ORDERED that the Petition be dismissed without prejudice.
Presented on July 11, 2012 by: /s/ VICTOR B. KENTON UNITED STATES MAGISTRATE JUDGE
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