United States District Court, Northern District of California
June 4, 2003
MICHAEL BOBBY WILLIAMS, PETITIONER,
STEPHEN W. MAYBERG, DIRECTOR, DEPARTMENT OF MENTAL HEALTH, RESPONDENT.
The opinion of the court was delivered by: Maxine M. Chesney, United States District Judge
ORDER OF DISMISSAL
Petitioner is a California prisoner who filed this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.
Petitioner was convicted in San Francisco County Superior Court and sentenced to ninety-one years to life in state prison on April 26, 1991. His direct appeals to the California Court of Appeal and the Supreme Court of California were denied. Petitioner filed a petition for a writ of habeas corpus in the San Francisco Superior Court, which petition was denied. Petitioner also filed a habeas petition in the Supreme Court of California, which he thereafter withdrew. According to petitioner, at the time petitioner filed the instant federal habeas petition, he had a petition for a writ of habeas corpus pending in the Santa Barbara County Superior Court. See Form Petition at 5.
The exhaustion requirement applicable to federal habeas petitions is not satisfied if there is a pending post-conviction proceeding in state court, whether or not the issue raised in the pending state petition is included in the federal petition. See 28 U.S.C. § 2254(b)-(c); Sherwood v. Tomkins, 716 F.2d 632, 634 (9th Cir. 1983). If a post-conviction challenge to a criminal conviction is pending in state court, a potential federal habeas petitioner must await the outcome of the challenge before his state remedies are considered exhausted. See Sherwood v. Tomkins, 716 F.2d at 634. A pending state court challenge may result in the reversal of the petitioner's conviction, thereby mooting the federal petition. See id. (citations omitted).
As petitioner has a petition currently pending in the Santa Barbara County Superior Court, the instant petition for a writ of habeas corpus is DISMISSED without prejudice to refiling once all state court post-conviction challenges to petitioner's conviction have been completed and all claims petitioner wishes to raise in federal court have been presented to the Supreme Court of California and exhausted under 28 U.S.C. § 2254(b)-(c). See Rose v. Lundy, 455 U.S. 509, 522 (1982) (holding every claim raised in federal habeas petition must be exhausted).
In light of this dismissal, the application to proceed in forma pauperis is DENIED and no fee is due.
All pending motions are terminated. The Clerk shall close the file.
IT IS SO ORDERED.
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