Diaz v. Grounds

Filing 6

ORDER OF DISMISSAL and granting 3 MOTION for Leave to Proceed in forma pauperis filed by Enrique Diaz. Signed by Judge Charles R. Breyer on 7/31/2013. (Attachments: # 1

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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Petitioner,

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ENRIQUEZ DIAZ, K-70268,

vs.
R. T. GROUNDS, Warden,
Respondent.

No. C 13-2441 CRB (PR)
ORDER OF DISMISSAL
(Docket #3)

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I.
Petitioner, a state prisoner incarcerated at Salinas Valley State Prison,

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seeks a writ of habeas corpus under 28 U.S.C. § 2254 challenging a prison

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disciplinary finding that resulted in the loss of 30 days of time credit. He also

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seeks leave to proceed in forma pauperis (IFP) under 28 U.S.C. § 1915.

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II.
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 must be

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

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III.

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Based solely on his affidavit of poverty, petitioner’s motion to proceed

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IFP (docket #3) is GRANTED. But the petition for a writ of habeas corpus is

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DISMISSED for failure to exhaust state judicial remedies.
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: July 31, 2013

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CHARLES R. BREYER
United States District Judge

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G:\PRO-SE\CRB\HC.13\Diaz, E.13-2441.dismissal.wpd

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