UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA WESTERN DIVISION
February 11, 2013
JEREMY WAYNE BEAVER,
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.
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