Jimenez v. Sullivan

Filing 7

ORDER DISMISSING PETITION FOR A WRIT OF HABEAS CORPUS FOR FAILURE TO EXHAUST. The deputy clerk hereby certifies that on 10/13/2017 a copy of this order was served by sending it via first-class mail to the address of each non-CM/ECF user listed on the Notice of Electronic Filing. Signed by Judge Charles R. Breyer on 10/13/2017. (lsS, COURT STAFF) (Filed on 10/13/2017)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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ROGELIO JIMENEZ, P43128,
Petitioner,

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United States District Court
Northern District of California

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Case No. 17-cv-05190-CRB (PR)

v.
J. W. SULLIVAN, Warden,
Respondent.

ORDER DISMISSING PETITION FOR
A WRIT OF HABEAS CORPUS FOR
FAILURE TO EXHAUST
(ECF No. 4)

Petitioner, a state prisoner currently incarcerated at the California Correctional Institution

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in Tehachapi, seeks a writ of habeas corpus under 28 U.S.C. § 2254 challenging a 2004 conviction

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from Del Norte County Superior Court.

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Prisoners in state custody who wish to challenge collaterally in federal habeas corpus

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proceedings either the fact or length of their confinement are first required to exhaust state judicial

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remedies, either on direct appeal or through collateral proceedings, by presenting the highest state

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court available with a fair opportunity to rule on the merits of each and every claim they seek to

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

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presented the Supreme Court of California with an opportunity to consider and rule on his claims.

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See O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999) (state’s highest court must be given

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opportunity to rule on claims even if review is discretionary); Larche v. Simons, 53 F.3d 1068,

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1071-72 (9th Cir. 1995) (Supreme Court of California must be given at least one opportunity to

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review state prisoners’ federal claims). The petition for a writ of habeas corpus under § 2254

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therefore is DISMISSED without prejudice to petitioner filing a new petition after exhausting state

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judicial remedies.

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But bas solely on petitioner’s affidavit of poverty, hi motion for leave to pro
sed
n
s
f
is
r
oceed in
for pauperis under 28 U.S.C. § 1915 (ECF No. 4 is GRAN
rma
s
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4)
NTED.
IT IS SO ORDER
S
RED.
Da
ated: Octobe 13, 2017
er
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__________
___________
__________
________
CH
HARLES R. BREYER
Un
nited States D
District Judg
ge

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United States District Court
Northern District of California

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