Opinion
No. C 02-2441 PJH (PR)
July 10, 2002
ORDER OF SUMMARY DISMISSAL
Petitioner, a California prisoner currently incarcerated at the Correctional Training Facility in Soledad, California, has filed a pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. He has paid the filing fee.
Petitioner states in his petition that he presently has a post-conviction proceeding pending in the Superior Court in and for Alameda County. The Ninth Circuit has held unequivocally that the exhaustion requirement is not satisfied if there is a pending proceeding in state court. Sherwood v. Tomkins, 716 F.2d 632, 634 (9th Cir. 1983). This is because the pending state action might result in reversal of the conviction, mooting the federal case. Id. This is true not only in the Sherwood fact pattern, where although a direct appeal was pending the federal issues had been decided by the state courts via another procedural route, but also to this fact pattern, in which a state postconviction proceeding is pending. See Schnepp v. Oregon, 333 F.2d 288 (9th Cir. 1964). Although Younger abstention might seem a better rationale for this requirement than exhaustion, see Phillips v. Vasguez, 56 F.3d 1030, 1038-39 (9th Cir. 1995) (concurring opinion), the court is nevertheless required to follow Sherwood. This petition is barred because petitioner has a case pending in a state court.
Younger v. Harris, 401 U.S. 37, 54 (1971).
Petitioner should note that an application for a federal writ of habeas corpus filed by a prisoner who is in state custody pursuant to a judgment of a state court may not be granted unless the prisoner has first exhausted state judicial remedies, either by way of a direct appeal or in collateral proceedings, by presenting the highest state court available with a fair opportunity to rule on the merits of each and every issue he or she seeks to raise in federal court. 28 U.S.C. § 2254 (b), (c); Granberry v. Greer, 481 U.S. 129, 133-34 (1987). That is, petitioner must first present each and every claim he seeks to raise in this court to the Supreme Court of California, either in a direct appeal or by way of a state petition for a writ of habeas corpus.
CONCLUSION
This case is DISMISSED without prejudice to filing a new federal petition after available state judicial remedies are exhausted. The Clerk shall close the file.
Petitioner should carefully note the possible application of the statute of limitations contained in 28 U.S.C. § 2244 (d) (as amended by the Antiterrorism and Effective Death Penalty Act of 1996) ("the Act"), which became law on April 24, 1996. The act for the first time imposed a statute of limitations on habeas petitions filed by state prisoners. Petitions filed by prisoners challenging non-capital state convictions or sentences must be filed within one year of the latest of the dates on which: (1) the judgment became final after the conclusion of direct review or the time passed for seeking direct review; (2) an impediment to filing an application created by unconstitutional state action was removed, if such action prevented petitioner from filing; (3) the constitutional right asserted was recognized by the Supreme Court, if the right was newly recognized by the Supreme Court and made retroactive cases on collateral review; or (4) the factual predicate of the claim could have been discovered through the exercise of due diligence. 28 U.S.C. § 2244 (d)(1). Time during which a properly filed application for collateral review, for instance a state habeas petition, is pending is excluded from the one-year time limit. Id. § 2244(d)(2). The time a federal petition, such as this one, is pending is not excluded. See Duncan v. Walker, 121 S.Ct. 2120, 2129 (2001).
IT IS SO ORDERED.