Velasquez v. Giurbino et al

Filing 13

ORDER DISMISSING CASE. Signed by Judge ARMSTRONG on 9/23/10. (lrc, COURT STAFF) (Filed on 9/23/2010)

Velasquez v. Lewis, et al

Doc. 13

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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA RONALD VELASQUEZ, Petitioner, No. C 10-01814 SBA (PR) ORDER OF DISMISSAL

GEORGE J. GIURBINO, Warden, Respondent. /

Petitioner, a state prisoner, has filed this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. His application for leave to proceed in forma pauperis has been granted. In an Order dated September 1, 2010, the Court issued an Order directing Respondent to show cause why the petition should not be granted. On September 13, 2010, Petitioner submitted a letter to the Court conceding that he has not exhausted all his state judicial remedies prior to filing the present petition. Therefore, he states he "intend[s] to utilize all levels of the state court for review of this petition prior to submitting to the United States District Court and the California Supreme Court, if necessary." (Pet'r Sept. 13, 2010 Letter at 2.) 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, 51516 (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 concedes that he has not exhausted all his state remedies, 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

Dockets.Justia.com

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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. The Court has rendered its final decision on this matter; therefore, this Order TERMINATES Plaintiff's case. The Clerk of the Court shall terminate any pending motions and close the file. IT IS SO ORDERED. DATED: 9/23/10 SAUNDRA BROWN ARMSTRONG United States District Judge

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UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

RONALD VELASQUEZ, Plaintiff, v. GEORGE J. GIURBINO et al, Defendant. /

Case Number: CV10-01814 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 September 23, 2010, 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.

Ronald Velasquez T-45458 Pelican Bay State Prison P.O. Box 7500 SHU C6/113 Crescent City, CA 95531-7500 Dated: September 23, 2010 Richard W. Wieking, Clerk By: LISA R CLARK, Deputy Clerk

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