Liebb v. Ayers

Filing 8

ORDER DISMISSING PETITION WITH LEAVE TO AMEND.. Signed by Judge Claudia Wilken on 2/5/08. (scc, COURT STAFF) (Filed on 2/5/2008)

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Liebb v. Ayers Doc. 8 Case 4:07-cv-05577-CW Document 8 Filed 02/05/2008 Page 1 of 3 1 2 3 4 5 6 7 8 9 10 United United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 v. STEPHEN LIEBB, IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA No. C 07-05577 CW (PR) ORDER DISMISSING PETITION WITH LEAVE TO AMEND Petitioner, R. AYERS, Jr., Warden, Respondent. / Petitioner, a state prisoner, filed this pro se petition for writ of habeas corpus pursuant to 28 U.S.C. 2254 challenging the Board of Parole Hearings' refusal to set a parole date at his fourth parole suitability hearing on July 27, 2006. It appears that Petitioner may not have exhausted his state remedies before filing the petition relating to his July 27, 2006 parole suitability hearing. (Pet. at 4-7.) Prisoners in state custody who wish to challenge in federal habeas proceedings either the fact or length of their confinement are first required to exhaust state judicial remedies by presenting the highest state court available with a fair opportunity to rule on the merits of each and every claim they seek to raise in federal court. See 28 U.S.C. 2254(b),(c)); Rose v. Lundy, 455 U.S. 509, If available state remedies have not been exhausted 515-16 (1982). as to all claims, the district court must dismiss the petition. Id. at 510; Guizar v. Estelle, 843 F.2d 371, 372 (9th Cir. 1988). A dismissal solely for failure to exhaust is not a bar to returning to federal court after exhausting available state remedies. See Trimble v. City of Santa Rosa, 49 F.3d 583, 586 (9th Cir. 1995). Dockets.Justia.com Case 4:07-cv-05577-CW Document 8 Filed 02/05/2008 Page 2 of 3 1 2 3 4 5 6 7 8 9 10 United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 The petition is DISMISSED WITH LEAVE TO AMEND to allege that Petitioner has exhausted his available state judicial remedies. If the petition is unexhausted, it must be dismissed in its entirety without prejudice to Petitioner returning to state court to exhaust his state remedies and then filing a new federal habeas corpus petition. Should he do so, he is advised to file his new federal habeas corpus petition as soon as possible after his state court proceedings have concluded. The Court makes no ruling at this time on the issue of the timeliness of any future federal petition. CONCLUSION For the foregoing reasons, the petition is DISMISSED WITH LEAVE TO AMEND. Within thirty (30) days of the date of this Order, Petitioner shall file an amended petition alleging that he has exhausted his state judicial remedies and attach copies of the orders denying his state habeas petitions. If no amended petition is filed, this petition will be dismissed without prejudice for failure to exhaust. IT IS SO ORDERED. DATED: 2/5/08 CLAUDIA WILKEN United States District Judge P:\PRO-SE\CW\HC.07\Liebb5577.DWLA-exh.wpd 2 Case 4:07-cv-05577-CW Document 8 Filed 02/05/2008 Page 3 of 3 1 2 3 4 5 6 7 8 9 10 United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 v. R AYERS JR et al, Defendant. STEPHEN LIEBB, Plaintiff, UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA Case Number: CV07-05577 CW CERTIFICATE OF SERVICE / I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District Court, Northern District of California. That on February 5, 2008, I SERVED a true and correct copy(ies) of the attached, by placing said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery receptacle located in the Clerk's office. Denise Alayne Yates Office of the Attorney General 455 Golden Gate Avenue, Suite 11000 San Francisco, CA 94102-7004 Stephen Liebb Reg. No. C-60825 San Quentin State Prison San Quentin, CA 94974 Dated: February 5, 2008 Richard W. Wieking, Clerk By: Sheilah Cahill, Deputy Clerk P:\PRO-SE\CW\HC.07\Liebb5577.DWLA-exh.wpd 3

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