Hill v. Sisto

Filing 4

ORDER OF DISMISSAL. Signed by Judge Charles R. Breyer on 10/23/07. (Attachments: # 1 Certificate of Service)(be, COURT STAFF) (Filed on 10/23/2007)

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Hill v. Sisto Doc. 4 Case 3:07-cv-05315-CRB Document 4 Filed 10/23/2007 Page 1 of 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Petitioner, a state prisoner incarcerated at California State Prison, Solano, seeks a writ of habeas corpus under 28 U.S.C. 2254. He also seeks to proceed in forma pauperis under 28 USC 1915. Good cause appearing, petitioner's request to proceed in forma pauperis (doc # 2) is GRANTED. The petition must be dismissed without prejudice, however. Prisoners in state custody who wish to challenge collaterally in federal habeas corpus 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). Petitioner has not done so. He has not presented the Supreme Court of California with an opportunity to consider and rule on his claims. See O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999) IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA RONALD W. HILL, JR., Petitioner, vs. D. K. SISTO, Warden, Respondent. ) ) ) ) ) ) ) ) ) ) No. C 07-5315 CRB (PR) ORDER OF DISMISSAL (Doc # 2) Dockets.Justia.com Case 3:07-cv-05315-CRB Document 4 Filed 10/23/2007 Page 2 of 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 (state's highest court must be given opportunity to rule on claims even if review is discretionary); Larche v. Simons, 53 F.3d 1068, 1071-72 (9th Cir. 1995) (Supreme Court of California must be given at least one opportunity to review state prisoners' federal claims). The claims are still pending before the state high court in two separate petitions for a writ of habeas corpus. See In re Hill, No. S153840 (Cal. filed June 26, 2007); In re Hill, No. S155300 (Cal. filed Aug. 10, 2007). The petition for a writ of habeas corpus therefore is DISMISSED without prejudice to refiling after state judicial remedies are exhausted. The clerk terminate all pending motions as moot and close the file. SO ORDERED. DATED: Oct. 23, 2007 CHARLES R. BREYER United States District Judge G:\PRO-SE\CRB\HC.07\Hill, R1.or1.wpd 2

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