1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10

DIXON ZAMBRANA-ALEMAN,

11 Case No. 23-cv-01617 EJD (PR) Petitioner, 12 ORDER OF DISMISSAL; DENYING 13 v. M PRO OT CIO EEN D F IO NR F L OE RA MV AE PT AO U PERIS; 14 SUPERIOR COURT OF SAN D AE PPN OY II NN TG M R EE NQ TU OES FT C F OO UR N SEL AS 15 FRANCISCO, et al., MOOT

16 Respondents. (Docket Nos. 11, 15)

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18 Petitioner, a state prisoner proceeding pro se, filed a petition for a writ of habeas 19 corpus pursuant to 28 U.S.C. § 2254, challenging his state conviction.1 Dkt. No. 1. 20 Petitioner filed a motion for leave to proceed in forma pauperis, Dkt. No. 11, and a motion 21 for appointment of counsel, Dkt. No. 15. 22 23 BACKGROUND 24 Petitioner was found guilty by a jury in San Francisco County Superior Court, of 25 several charges involving forcible lewd and sexual acts on a minor. Dkt. No. 1 at 2. 26 Petitioner was sentenced on October 23, 2020, to 28 years in state prison. Id. 27 1 Petitioner did not seek review of the claims raised in this petition in the California 2 Supreme Court. Dkt. No. 1 at 7. 3 Petitioner filed this federal habeas action on April 5, 2023. 4 5 DISCUSSION 6 A. Exhaustion 7 Prisoners in state custody who wish to challenge collaterally in federal habeas 8 proceedings either the fact or length of their confinement are first required to exhaust state 9 judicial remedies, either on direct appeal or through collateral proceedings, by presenting 10 the highest state court available with a fair opportunity to rule on the merits of each and 11 every claim they seek to raise in federal court. See 28 U.S.C. § 2254(b)-(c). If available 12 state remedies have not been exhausted as to all claims, the district court must dismiss the 13 petition. Duckworth v. Serrano, 454 U.S. 1, 3-5 (1981). Before he may challenge either 14 the fact or length of his confinement in a habeas petition in this Court, petitioner must 15 present to the California Supreme Court any claims he wishes to raise in this court. See 16 Rose v. Lundy, 455 U.S. 509, 522 (1982) (holding every claim raised in federal habeas 17 petition must be exhausted). If available state remedies have not been exhausted as to all 18 claims, the district court must dismiss the petition. See id., 455 U.S. at 510; Guizar v. 19 Estelle, 843 F.2d 371, 372 (9th Cir. 1988). 20 Petitioner indicates that he did not pursue review of the claims in the instant federal 21 petition in the state high court. Dkt. No. 1 at 7. Accordingly, it is clear from the petition 22 that Petitioner did not present the claims from the instant petition to the California 23 Supreme Court, either on direct appeal or in a state habeas action, before filing this action. 24 Therefore, the petition is not ripe for federal review because Petitioner has still not 25 exhausted his state remedies. See Rose, 455 U.S. at 522. Therefore, this petition should 26 be dismissed without prejudice to Petitioner filing a new federal habeas corpus petition 27 once state remedies have been exhausted. 1 CONCLUSION 2 For the foregoing reasons, the petition for writ of habeas corpus is DISMISSED for 3 failure to exhaust state remedies. See Rose, 455 U.S. at 510. The dismissal is without 4 || prejudice to Petitioner refiling once he has exhausted state judicial remedies with respect 5 || to any cognizable claims raised. 6 Petitioner’s motion for leave to proceed in forma pauperis is DENIED for lack of 7 || indigency. Dkt. No. 11. The balance on Petitioner’s “Inmate Statement Report” shows 8 || $1,681.81, id. at 5, indicating that Petitioner is more than capable of paying the $5.00 9 || filing fee. 10 Petitioner’s request for appointment of counsel is DENIED as moot. Dkt. No. 15. 1] This order terminates Docket Nos. 11 and 15.

IT IS SO ORDERED.

13 Dated: July 10, 2023 aN.

EDWARD J. DAVILA

14 United States District Judge

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