Rico v. 450 Golden Gate Avenue, San Francisco, CA 94102

Filing 3

ORDER DISMISSING CASE. Signed by Judge ARMSTRONG on 10/30/08. (lrc, COURT STAFF) (Filed on 11/3/2008)

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 Petitioner is a prisoner of the State of California who is incarcerated at the California Medical Facility. He has filed two pro se petitions for a writ of habeas corpus, and he also requests leave to proceed in forma pauperis. Petitioner did not name a respondent in these actions. Mike Knowles, the current warden at California Medical Facility, has been named as Respondent pursuant to Rule 25(d) of the Federal Rules of Civil Procedure. Upon reviewing both petitions, it is apparent that the petition in Case No. C 08-4346 SBA (PR) should have been filed as a supplement to the petition in Case No. C 08-4345 SBA (PR). DISCUSSION In both petitions, Petitioner alleges that he received a sentence that was "to [sic] stiff for the crime." (Pet. in Case No. C 08-4346 SBA (PR) at 3.) He further claims he was "the victim in the case." (Id.) He seeks relief in the form of a "lighter sentence." (Id.) He admits that he did v. MIKE KNOWLES, Warden, Respondent. ______________________________________/ v. MIKE KNOWLES, Warden, Respondent. ______________________________________/ JOSE L. RICO, Petitioner, ORDER OF DISMISSAL No. C 08-4346 SBA (PR) JOSE L. RICO, Petitioner, IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA No. C 08-4345 SBA (PR) ORDER OF DISMISSAL

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not exhaust his state remedies before filing his petitions. 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, 515-16 (1982). If available state remedies have not been exhausted 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). Because Petitioner did not present his claims to the state supreme court for review, either in a petition for review or in a state petition for a writ of habeas corpus, his federal petition is unexhausted and must be DISMISSED. This dismissal is 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, 1. The Clerk is ordered to revoke filing of the petition in Case No. C 08-4346 SBA

(PR) and to file it as a supplement to the petition in Case No. C 08-4345 SBA (PR). 2. The Clerk shall close Case No. 08-4346 SBA (PR). No filing fee is due in Case

No. 08-4346 SBA (PR) as this action was opened in error. The Clerk is directed to file Plaintiff's application for in forma pauperis status in Case No. 08-4346 SBA (PR) as an application for in forma pauperis status in Case No. C 08-4345 SBA (PR). 3. Plaintiff's application for in forma pauperis status that was transferred to Case No.

C 08-4345 SBA (PR) is GRANTED. 4. Plaintiff's petition and supplement to the petition are DISMISSED as unexhausted. 2

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5.

The Clerk of the Court shall close both files as indicated above and terminate any

pending motions in both actions. The Court has rendered its final decision on both matters; therefore, this Order TERMINATES Case Nos. C 08-4346 SBA (PR) and C 08-4345 SBA (PR). IT IS SO ORDERED. DATED: 10/30/08

SAUNDRA BROWN ARMSTRONG United States District Judge

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UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA JOSE LUIS RICO, Plaintiff, v. / et al, Defendant. /

Case Number: CV08-04345 SBA 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 November 3, 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.

Jose L. Rico G-01731 California Medical Facility P.O. Box 2000 Vacaville, CA 95696 Dated: November 3, 2008 Richard W. Wieking, Clerk By: LISA R CLARK, Deputy Clerk

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