The opinion of the court was delivered by: SUSAN ILLSTON, District Judge
The petition for writ of habeas corpus is dismissed without prejudice
to petitioner filing a new action after he receives a decision in his
pending state habeas action.
IT IS SO ORDERED AND ADJUDGED.
Wayne A. Whitworth, currently on parole, has filed this pro se action
seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2254. His
petition is now before the court for review pursuant to
28 U.S.C. § 2243 and Rule 4 of the Rules Governing Section 2254 Cases.
Whitworth states in his petition that he was convicted in Santa Clara
County Superior Court of assault by means of force likely to produce
great bodily injury and battery. He also states that he was sentenced to
a six-year term in prison on June 2, 1997. Whitworth further states that
he had a petition pending in the California Supreme Court as of the date
of the filing of this action. (Petition, p. 5.) The California Supreme
Court's web site docket sheet indicates that the action is a habeas
action and is still pending there.
Prisoners in state custody who want to challenge either the fact or
length of their confinement in federal court by a petition for a writ of
habeas corpus 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 issue they seek to raise in federal
court. See 28 U.S.C. § 2254(b)(1)(A),(c); Duckworth v.
Serrano, 454 U.S. 1, 3 (1981). If available state remedies have not been
exhausted as to all claims, the district court must dismiss the petition.
See id. at 4-5. The exhaustion requirement is not satisfied if
there is a pending post-conviction proceeding in state court. See
Sherwood v. Tomkins, 716 F.2d 632, 634 (9th Cir. 1983). If an appeal
or collateral challenge of a state criminal conviction is pending, a
would-be federal habeas petitioner must await the outcome of the state
court action before his state remedies are considered exhausted, even
where the issue to be raised in the petition for writ of habeas corpus
has been finally settled in the state courts. See id. Even if
the federal constitutional question raised by the petitioner cannot be
resolved in a pending state action, that action may result in the
reversal of the petitioners conviction on some other ground, thereby
mooting the federal question. See id. (citations omitted).
Whitworth's habeas petition is currently pending in the California
Supreme Court. He must await the outcome of that state court challenge to
his conviction before presenting his claims in federal court. Until that
proceeding is concluded, a habeas petition in this court is premature and
must be dismissed. Because Whitworth has not exhausted his state court
remedies, his petition is DISMISSED.
After Whitworth exhausts his state court remedies, he may file a new
petition for writ of habeas corpus. He is cautioned not to file an
amended petition in this action and not to use the case number for this
action because this action is being closed today. When he files a new
petition, he should put no case number on the first page, and should
submit it with the $5.00 filing fee or a completed in forma
pauperis application. At that time, the court will give the new
petition a new case number.
Finally, the court cautions Whitworth that he must promptly file his
next habeas petition in federal court after he receives a decision from
the California Supreme Court because of a one-year statute of limitations
that exists for the filing of federal petitions. The one-year limitations
period generally commences to run when the judgment becomes final by the
conclusion of direct
review and is tolled during the time during which a properly filed
application for state post-conviction or other collateral review is
pending. See 28 U.S.C. § 2244(d).
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