MAXINE M. CHESNEY, United States District Judge.
Petitioner, a California prisoner proceeding pro se, has filed a habeas corpus petition pursuant to 28 U.S.C. § 2254. Petitioner was convicted in 1996 of drug offenses in Lake County, California. Petitioner claims in the instant petition that his defense counsel did not properly defend him because she failed to challenge an invalid prior conviction which was used to enhance his sentence. According to the petition, petitioner has not presented this claim to the Supreme Court of California nor sought any form of relief in that Court for his counsel's representation.
Prisoners in state custody who wish to challenge collaterally in federal habeas proceeding's either the fact or length of' their confinement are first required to 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 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); Duckworth v. Serrano, 454 U.S. 1, 3 (1981); McNeeley v, Arave, 842 F.2d 230, 231 (9th Cir. 1988). Petitioner has not exhausted the claims in this petition because he never presented them to the Supreme Court of California. If available state remedies have not been exhausted, the district court must dismiss the petition. See Rose v. Lundy, 455 U.S. 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).
Accordingly, the petition is DISMISSED without prejudice to refiling a petition once petitioner has exhausted his state court remedies. All pending motions are TERMINATED. The Clerk shall close the file.
IT IS SO ORDERED.
JUDGMENT IN A CIVIL CASE
[X] Decision by Court. This action came to trial or hearing before the Court. The issues have been tried or heard and a decision has been rendered.
IT IS ORDERED AND ADJUDGED the petition is DISMISSED without prejudice to refiling a petition once petitioner has exhausted his state court remedies. All pending notions are TERMINATED.
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