Risch v. County of Mendocino

• Court: District Court, N.D. California
• Decided: August 19, 2025
• Docket: 5:25-cv-01367
• Status: Unknown

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 DANIEL C. RISCH, 7 Case No. 5:25-cv-01367 EJD (PR) Petitioner, 8 ORDER OF DISMISSAL 9 v. 10 COUNTY OF MENDOCINO, 11 Respondent. 12 13 Petitioner, a state prisoner proceeding pro se, filed a petition for a writ of habeas 14 corpus pursuant to 28 U.S.C. § 2254, challenging his state conviction. Dkt. No. 5. 15 Petitioner paid the filing fee. Dkt. No. 17. 16 BACKGROUND 17 Petitioner pleaded no contest to vehicle theft with prior related theft convictions and 18 was found to be a second striker. Dkt. No. 5 at 2. He was sentenced in Mendocino County 19 Superior Court on November 6, 2024, to six years in state court. Id. at 1. 20 The petition indicates Petitioner did not seek an appeal. Id. at 3. Petitioner 21 indicates that he “requested attorney of record to file appeal. Attorney failed to comply 22 w/request.” Id. at 3. However, a search for Petitioner’s trial court case (Case No. 23 24CR04393) on California’s online Appellate Courts Case database shows that an appeal 24 was filed on January 8, 2025, and is currently pending in the First Appellate District (Case 25 No. A172161).1 26 Petitioner filed this federal habeas action on February 21, 2025. 27 1 DISCUSSION 2 A. Exhaustion 3 Prisoners in state custody who wish to challenge collaterally in federal habeas 4 proceedings either the fact or length of their confinement are first required to exhaust state 5 judicial remedies, either on direct appeal or through collateral proceedings, by presenting 6 the highest state court available with a fair opportunity to rule on the merits of each and 7 every claim they seek to raise in federal court. See 28 U.S.C. § 2254(b)-(c). If available 8 state remedies have not been exhausted as to all claims, the district court must dismiss the 9 petition. Duckworth v. Serrano, 454 U.S. 1, 3-5 (1981). Before he may challenge either 10 the fact or length of his confinement in a habeas petition in this Court, petitioner must 11 present to the California Supreme Court any claims he wishes to raise in this court. See 12 Rose v. Lundy, 455 U.S. 509, 522 (1982) (holding every claim raised in federal habeas 13 petition must be exhausted). If available state remedies have not been exhausted as to all 14 claims, the district court must dismiss the petition. See id., 455 U.S. at 510; Guizar v. 15 Estelle, 843 F.2d 371, 372 (9th Cir. 1988). 16 The petition indicates that Petitioner did not appeal the claims in the instant federal 17 petition. Dkt. No. 5 at 3. As stated above, the Court has determined that an appeal is 18 currently pending in the state appellate court. See supra at 1. Accordingly, it is clear that 19 Petitioner did not present the claims from the instant petition to the California Supreme 20 Court, either on direct appeal or in a state habeas action, before filing this action. 21 Therefore, the petition is not ripe for federal review because Petitioner has still not 22 exhausted his state remedies. See Rose, 455 U.S. at 522. Therefore, this petition should 23 be dismissed without prejudice to Petitioner filing a new federal habeas corpus petition 24 once state remedies have been exhausted. 25 26 CONCLUSION 27 For the foregoing reasons, the petition for writ of habeas corpus is DISMISSED for 1 || prejudice to Petitioner refiling once he has exhausted state judicial remedies, i.e., the state 2 || supreme court issues a decision denying relief. 3 IT IS SO ORDERED. 4 5 || Dated: August 19, 2025 EDWARD J. DAVILA 6 United States District Judge 7 8 9 10 11 12

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