Free Order on Motion for Leave to Proceed in forma pauperis - District Court of California - California

Case 5:08-cv-03591-RMW

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Filed 08/18/2008

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1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE NORTHERN DISTRICT OF CALIFORNIA 10 11 ZACHARY D. HUNT, 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Petitioner, a California state prisoner, filed a pro se petition for a writ of habeas corpus and an application to proceed in forma pauperis. The court GRANTS petitioner's application to proceed in forma pauperis (docket no. 2). The court will DISMISS the petition without prejudice because petitioner has not exhausted his state court remedies. BACKGROUND The petition alleges that petitioner is currently incarcerated at the Santa Rita Jail on a parole violation. Petitioner claims that on July 2, 2008, the Board of Prison Terms determined that he was in violation of parole for failing to comply with certain parole requirements. See Petition at 6. According to the petition, petitioner did not seek review from any state court before filing the instant petition. See Petition at 4-5. ///
Order of Dismissal for Failure to Exhaust; Granting Application to Proceed In Forma Pauperis 1 P:\pro-se\sj.rmw\hc.08\Hunt591disexh

*E-FILED - 8/18/08*

) ) Petitioner, ) ) vs. ) ) ) BOARD OF PRISON TERMS, et al., ) ) Respondents. ____________________________________)

C 08-3591 RMW (PR) ORDER OF DISMISSAL FOR FAILURE TO EXHAUST; GRANTING APPLICATION TO PROCEED IN FORMA PAUPERIS (Docket No. 2)

Case 5:08-cv-03591-RMW

Document 4

Filed 08/18/2008

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DISCUSSION Prisoners in state custody who wish to challenge collaterally in federal habeas proceedings either the fact or length of their confinement 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 claim they seek to raise in federal court. See 28 U.S.C. § 2254(b), (c); Rose v. Lundy, 455 U.S. 509, 515-16 (1982). The state's highest court must be given an opportunity to rule on the claims even if review is discretionary. O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999) (petitioner must invoke "one complete round of the State's established appellate review process."). Here, petitioner admits he has not presented his claims to the Supreme Court of California, either on direct appeal or through collateral proceedings, nor has he presented any exceptional circumstances to excuse his doing so. Accordingly, this court may not entertain the instant petition. CONCLUSION The petition for a writ of habeas corpus is DISMISSED without prejudice to refiling after available state judicial remedies are exhausted. Petitioner's motion to proceed in forma pauperis (docket no. 2) is GRANTED. The clerk shall terminate all pending motions and close the file. IT IS SO ORDERED.

8/15/08 DATED: _______________
RONALD M. WHYTE United States District Judge

Order of Dismissal for Failure to Exhaust; Granting Application to Proceed In Forma Pauperis 2 P:\pro-se\sj.rmw\hc.08\Hunt591disexh