Adams v. Hill

Filing 5

ORDER OF DISMISSAL and granting 2 MOTION for Leave to Proceed in forma pauperis filed by Clifford E. Adams. Signed by Judge Charles R. Breyer on 4/18/2013. (Attachments: # 1 Certificate/Proof of Service)(beS, COURT STAFF) (Filed on 4/22/2013)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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CLIFFORD E. ADAMS, AE8144,
Petitioner,

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vs.
GARY SWARTHOUT, Warden,
Respondent.

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No. C 12-6238 CRB (PR)
ORDER OF DISMISSAL
(Docket # 2)

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Petitioner, a state prisoner currently incarcerated at California State

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Prison, Solano, seeks a writ of habeas corpus under 28 U.S.C. § 2254 challenging

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a conviction from the San Mateo County Superior Court. He also seeks leave to

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proceed in forma pauperis under 28 U.S.C. § 1915.

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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 federal claims. See O’Sullivan v. Boerckel, 526 U.S. 838, 845

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(1999) (state’s highest court must be given opportunity to rule on claims even if

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

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1995) (Supreme Court of California must be given at least one opportunity to

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review state prisoners' federal claims).

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The petition for a writ of habeas corpus under § 2254 is DISMISSED

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without prejudice to refiling after state judicial remedies are exhausted. But

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based solely on his affidavit of poverty, petitioner's request (docket # 2) to

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proceed in forma pauperis under § 1915 is granted.

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The clerk is instructed to enter judgment in accordance with this order and

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close the file.

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SO ORDERED.

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DATED: April 18, 2013
CHARLES R. BREYER
United States District Judge

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G:\PRO-SE\CRB\HC.12\Adams, C.12-6238.dismissal.wpd

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