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SEYMOUR v. MAYBERG

United States District Court, Northern District of California


March 14, 2003

LEON M. SEYMOUR, PETITIONER,
v.
STEPHEN MAYBERG, RESPONDENT.

The opinion of the court was delivered by: Vaughn R. Walker, United States District Judge.

ORDER OF DISMISSAL

Petitioner seeks a writ of habeas corpus under 28 U.S.C. § 2254 challenging a January 31, 2002 judgment from the Superior Court of the State of California in and for the County of San Mateo committing him to the custody of the California Department of Mental Health under the Sexually Violent Predators Act, Cal Welf & Inst Code § 6600 et seq ("SVPA").

Section 2254 requires that petitioner 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 he seeks to raise in federal court. See 28 U.S.C. § 2254(b)-(c); O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). Petitioner claims he did so when the Supreme Court of California denied his state petition for a writ of habeas corpus on January 15, 2003. See In re Leon M. Seymour, No S109094 (Cal Jan 15, 2003) (order). However, a closer inspection of the record reveals that the instant federal petition (which was filed on January 28, 2003) is premature because petitioner's direct appeal is still pending in the state courts.

It is well-established that the exhaustion requirement is not satisfied if there is a pending post-conviction proceeding in state court. Sherwood v. Tomkins, 716 F.2d 632, 634 (9th Cir 1983). Petitioner must await the outcome of his direct appeal before seeking federal habeas relief. See id. After all, even the federal claims raised by petitioner here cannot be resolved in his pending state appeal, the appeal may result in the reversal of petitioner's commitment on some other ground, thereby mooting the federal petition. See id.

The instant petition for a writ of habeas corpus therefore is DISMISSED without prejudice to refiling after state direct appeal proceedings come to an end.*fn1

The clerk shall close the file and terminate all pending motions (see, e.g., doc # 3) as moot.

So ORDERED.


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