Fisher v. San Francisco County Jail et al

Filing 4

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

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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 8 RUDOLPH FISHER, Petitioner, 9 10 11 United States District Court For the Northern District of California 12 No. C 12-5616 SI (pr) ORDER OF DISMISSAL v. SAN FRANCISCO COUNTY JAIL; et al., Respondents. / 13 14 Rudolph Fisher, an inmate at the San Francisco County Jail, filed this action for a writ 15 of habeas corpus under 28 U.S.C. § 2254 to challenge a sentence for a parole violation. His 16 petition is now before the court for review pursuant to 28 U.S.C. §2243 and Rule 4 of the Rules 17 Governing Section 2254 Cases. 18 This court may entertain a petition for writ of habeas corpus "in behalf of a person in 19 custody pursuant to the judgment of a State court only on the ground that he is in custody in 20 violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). A 21 district court considering an application for a writ of habeas corpus shall "award the writ or issue 22 an order directing the respondent to show cause why the writ should not be granted, unless it 23 appears from the application that the applicant or person detained is not entitled thereto." 28 24 U.S.C. § 2243. 25 The exhaustion rule requires that a prisoner in state custody who wishes to challenge 26 collaterally in federal habeas proceedings either the fact or length of his confinement must first 27 exhaust state judicial remedies, either on direct appeal or through collateral proceedings, by 28 presenting the highest state court available with a fair opportunity to rule on the merits of each 1 and every claim he seeks to raise in federal court. See 28 U.S.C. § 2254(b),(c); Rose v. Lundy, 2 455 U.S. 509, 515-16 (1982); Duckworth v. Serrano, 454 U.S. 1, 3 (1981). The exhaustion-of- 3 state-remedies doctrine reflects a policy of federal-state comity to give the state "'an initial 4 "opportunity to pass upon and correct" alleged violations of its prisoners' federal rights.'" Picard 5 v. Connor, 404 U.S. 270, 275 (1971) (citations omitted). Although the exhaustion requirement 6 is not jurisdictional and instead is a matter of comity, see Granberry v. Greer, 481 U.S. 129, 7 133-34 (1987), the court generally may not grant relief on an unexhausted claim, see 28 U.S.C. 8 § 2254(b)(1). 9 Fisher never filed a petition for review or a petition for writ of habeas corpus in the 10 California Supreme Court. He therefore never fairly presented to that court any of his claims 11 that he now wishes this court to consider. He has not exhausted state court remedies as to any 12 of the claims in his federal petition. The court cannot stay an action where the petition is fully 13 unexhausted. See Rose v. Lundy, 455 U.S. at 510. 14 This action must be dismissed. This dismissal is without prejudice to Fisher filing a new 15 petition after he exhausts state court remedies as to each claim contained in his new petition. 16 Because this action is being dismissed today, Fisher cannot file an amended petition in this 17 action. Instead, he must file a new petition and a new case number will be assigned it when he 18 returns after exhausting in state court. Fisher is urged to act promptly to present his claims to 19 state court and then promptly return to this court to file any new action to avoid being barred by 20 the one-year statute of limitations for federal habeas actions in 28 U.S.C. § 2244(d). 21 Petitioner’s in forma pauperis application is GRANTED. (Docket # 2.) 22 The clerk shall close the file. 23 IT IS SO ORDERED. 24 DATED: November 6, 2012 SUSAN ILLSTON United States District Judge 25 26 27 28 2

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