Bruton v. Contra Costa County

Filing 2

ORDER OF DISMISSAL. Signed by Judge Charles R. Breyer on 9/8/2011. (Attachments: # 1 Certificate of Service)(beS, COURT STAFF) (Filed on 9/13/2011)

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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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DAVID PATRICK BRUTON,
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Petitioner,
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vs.
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CLIFF ALLENBY, Director of
California's Dep't of Mental Health,
Respondent.

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No. C 11-4415 CRB (PR)
ORDER OF DISMISSAL

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Petitioner, a state prisoner confined at Napa State Hospital pursuant to a

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judgment from Contra Costa County Superior Court, seeks a writ of habeas

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corpus under 28 U.S.C. § 2254.

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Prisoners in state custody who wish to challenge collaterally in federal

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habeas corpus proceedings either the fact or length of their confinement are first

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required to exhaust state judicial remedies, either on direct appeal or through

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collateral proceedings, by presenting the highest state court available with a fair

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opportunity to rule on the merits of each and every claim they seek to raise in

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federal court. See 28 U.S.C. § 2254(b)-(c). Petitioner has not done so. He has

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not presented the Supreme Court of California with an opportunity to consider

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and rule on his claims. See O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999)

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(state’s highest court must be given opportunity to rule on claims even if review

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is discretionary); Larche v. Simons, 53 F.3d 1068, 1071-72 (9th Cir. 1995)

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(Supreme Court of California must be given at least one opportunity to review

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state prisoners' federal claims). The petition for a writ of habeas corpus therefore

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is DISMISSED without prejudice to refiling after exhausting state judicial

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remedies.

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The clerk shall enter judgment in accordance with this order and close the

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file.

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SO ORDERED.

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DATED: Sept. 9, 2011
CHARLES R. BREYER
United States District Judge

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G:\PRO-SE\CRB\HC.11\Bruton, D1.dismissal.wpd

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