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Jeremy Wayne Beaver v. Warden Linda Mcgrew

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA WESTERN DIVISION


February 11, 2013

JEREMY WAYNE BEAVER,
PETITIONER,
v.
WARDEN LINDA MCGREW, RESPONDENT.

The opinion of the court was delivered by: J. Spencer Letts United States District Judge

MEMORANDUM AND ORDER DISMISSING PETITION

Petitioner filed this petition for a writ of habeas corpus on January 29, 2013. The petition challenges a prison disciplinary ruling issued on August 29, 2012. [Petition at 3 and attached pages].

A state prisoner is required to exhaust all available state court remedies before a federal court may grant habeas relief. 28 U.S.C. § 2254(b); O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999); see Duncan v. Henry, 513 U.S. 364, 365 (1995)(per curiam). The exhaustion requirement is satisfied when the substance of a petitioner's federal claim has been fairly presented to the state's highest court. Davis v. Silva, 511 F.3d 1005, 1008-1009 (9th Cir. 2008).

From the face of the petition, it appears that petitioner has not exhausted his state remedies as to any of the claims alleged in the petition. [See Petition at 2-3]. Rather, the exhibits indicate that petitioner is in the process of completing his administrative appeals. [Petition, attached pages]. Furthermore, reference to the California Supreme Court's docket reveals no petition filed by petitioner. See http://appellatecases.courtinfor.ca.gov.

Although this Court has discretion to stay mixed habeas petitions to allow the petitioner to exhaust his state remedies, see Rhines v. Webber, 544 U.S. 269, 277-278 (2005), it does not have discretion to stay a petition containing only unexhausted claims. Raspberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir. 2006) ("Once a district court determines that a habeas petition contains only unexhausted claims, it need not inquire further as to the petitioner's intentions. Instead, it may simply dismiss the habeas petition for failure to exhaust."); Davis v. Adams, 2010 WL 1408290, *2 (C.D.Cal. 2010) (stating that a federal court cannot stay a completely unexhausted petition), report and recommendation adopted, 2010 WL 1408292 (C.D.Cal. 2010).

Therefore, the petition for a writ of habeas corpus is dismissed without prejudice.

It is so ordered.

20130211

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