Fisher v. San Francisco County Jail et al

Filing 4

ORDER OF DISMISSAL (Illston, Susan) (Filed on 11/6/2012)

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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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RUDOLPH FISHER,
Petitioner,

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United States District Court
For the Northern District of California

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No. C 12-5616 SI (pr)
ORDER OF DISMISSAL

v.
SAN FRANCISCO COUNTY JAIL;
et al.,
Respondents.
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Rudolph Fisher, an inmate at the San Francisco County Jail, filed this action for a writ

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of habeas corpus under 28 U.S.C. § 2254 to challenge a sentence for a parole violation. His

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petition is now before the court for review pursuant to 28 U.S.C. §2243 and Rule 4 of the Rules

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Governing Section 2254 Cases.

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This court may entertain a petition for writ of habeas corpus "in behalf of a person in

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custody pursuant to the judgment of a State court only on the ground that he is in custody in

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violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). A

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district court considering an application for a writ of habeas corpus shall "award the writ or issue

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an order directing the respondent to show cause why the writ should not be granted, unless it

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appears from the application that the applicant or person detained is not entitled thereto." 28

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U.S.C. § 2243.

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The exhaustion rule requires that a prisoner in state custody who wishes to challenge

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collaterally in federal habeas proceedings either the fact or length of his confinement must first

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exhaust state judicial remedies, either on direct appeal or through collateral proceedings, by

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presenting the highest state court available with a fair opportunity to rule on the merits of each

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and every claim he seeks to raise in federal court. See 28 U.S.C. § 2254(b),(c); Rose v. Lundy,

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455 U.S. 509, 515-16 (1982); Duckworth v. Serrano, 454 U.S. 1, 3 (1981). The exhaustion-of-

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state-remedies doctrine reflects a policy of federal-state comity to give the state "'an initial

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"opportunity to pass upon and correct" alleged violations of its prisoners' federal rights.'" Picard

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v. Connor, 404 U.S. 270, 275 (1971) (citations omitted). Although the exhaustion requirement

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is not jurisdictional and instead is a matter of comity, see Granberry v. Greer, 481 U.S. 129,

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133-34 (1987), the court generally may not grant relief on an unexhausted claim, see 28 U.S.C.

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§ 2254(b)(1).

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Fisher never filed a petition for review or a petition for writ of habeas corpus in the

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California Supreme Court. He therefore never fairly presented to that court any of his claims

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that he now wishes this court to consider. He has not exhausted state court remedies as to any

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of the claims in his federal petition. The court cannot stay an action where the petition is fully

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unexhausted. See Rose v. Lundy, 455 U.S. at 510.

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This action must be dismissed. This dismissal is without prejudice to Fisher filing a new

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petition after he exhausts state court remedies as to each claim contained in his new petition.

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Because this action is being dismissed today, Fisher cannot file an amended petition in this

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action. Instead, he must file a new petition and a new case number will be assigned it when he

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returns after exhausting in state court. Fisher is urged to act promptly to present his claims to

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state court and then promptly return to this court to file any new action to avoid being barred by

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the one-year statute of limitations for federal habeas actions in 28 U.S.C. § 2244(d).

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Petitioner’s in forma pauperis application is GRANTED. (Docket # 2.)

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The clerk shall close the file.

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IT IS SO ORDERED.

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DATED: November 6, 2012
SUSAN ILLSTON
United States District Judge

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