Al'farov.California Department of Corrections

United States District Court, N.D. CaliforniaJul 6, 2005
No. C 04-4459 CW (PR) (N.D. Cal. Jul. 6, 2005)

No. C 04-4459 CW (PR).

July 6, 2005


CLAUDIA WILKEN, District Judge

Petitioner Michael Al'Faro is a prisoner of the State of California who is incarcerated at San Quentin State Prison as the result of the revocation of his parole. He has filed this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 alleging that his continued incarceration is unlawful because he was not provided with a timely revocation hearing. Petitioner first filed his petition in the United States District Court for the Eastern District of California. That court transferred the petition to this Court because both the county of Petitioner's confinement and the county of his conviction are located within this district. 28 U.S.C. § 2241(d).

Petitioner concedes that he has not presented his claims for review to the State courts, stating that "although State habeas corpus is an available remedy, the time required to complete such an action would likely render the petition moot." (Petition at 4 (citation omitted).) Prisoners in State custody who wish to challenge either the fact or length of their confinement by a federal petition for a writ of habeas corpus must first exhaust State judicial remedies, either on direct appeal or through collateral proceedings, by presenting the highest State court available with a fair opportunity to rule on the merits of each and every issue they seek to raise in federal court. 28 U.S.C. § 2254(b), (c); Granberry v. Greer, 481 U.S. 129, 133-34 (1987). The exhaustion requirement applies to a habeas petition which challenges the legality or duration of a prisoner's custody resulting from the revocation of parole.See Young v. Kenny, 907 F.2d 874, 876-78 (9th Cir. 1990),cert. denied, 498 U.S. 1126 (1991). Petitioner's assertion that he does not have time to pursue his claim in State court before it becomes moot does not relieve him of the exhaustion requirement. His allegations do not meet the "exceptional circumstances" required in order for a district court to excuse exhaustion. See 28 U.S.C. § 2254(b)(1); Edelbacher v. Calderon, 160 F.3d 582, 585 (9th Cir. 1998) (requiring "extremely unusual circumstances").

If available State remedies have not been exhausted as to all claims, the district court must dismiss the petition. Rose v. Lundy, 455 U.S. 509, 510 (1982); Guizar v. Estelle, 843 F.2d 371, 372 (9th Cir. 1988). However, a dismissal solely for failure to exhaust is not a bar to returning to federal court after exhausting available State remedies. Trimble v. City of Santa Rosa, 49 F.3d 583, 586 (9th Cir. 1995).

Because Petitioner has not presented his claims to the highest State court they are unexhausted. Accordingly, the petition is DISMISSED without prejudice. All pending motions are DENIED as moot. The Clerk of the Court shall close the file.