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WHITWORTH v. LOCKYER

United States District Court, N.D. California


January 29, 2004.

WAYNE A. WHITWORTH, Petitioner,
v.
Attorney General BILL LOCKYER, Respondent

The opinion of the court was delivered by: SUSAN ILLSTON, District Judge

JUDGMENT

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.

  ORDER OF DISMISSAL

  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 Page 2 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 Page 3 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).

  IT IS SO ORDERED.

20040129

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