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McCRAY v. SAN MATEO COUNTY SUPERIOR COURT

United States District Court, N.D. California


May 5, 2004.

MARK EDWARD McCRAY, Petitioner,
v.
SAN MATEO COUNTY SUPERIOR COURT, Respondent

The opinion of the court was delivered by: MAXINE CHESNEY, 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 Mateo County Superior Court and, on or about May 14, 2001, was sentenced to four years in state prison. His direct appeal to the California Court of Appeal was unsuccesful. Petitioner indicates in his petition, however, that at the time he filed the instant federal habeas petition, he had a petition for a writ of habeas corpus pending before the California Supreme Court. See Form Petition at 6.

  The exhaustion requirement applicable to federal habeas petitions is not satisfied if there is a pending post-conviction proceeding in state court. 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 id. Moreover, the rule in Sherwood applies whether or not the issue raised in the pending state petition is included in the federal petition, see id., for the reason that 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 California Supreme 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 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 petitioner's lack of funds, the application to proceed in forma pauperis is GRANTED.

  This order terminates docket numbers 2 and 4.

  The Clerk shall close the file.

  IT IS SO ORDERED. JUDGMENT IN A CIVIL CASE

  [] Jury Verdict. This action came before the Court for a trial by jury. The issues have been tried and the jury has rendered its verdict.

  [X] Decision by Court. This action came to trial or hearing before the Court. The issues have been tried or heard and a decision has been rendered.

  IT IS ORDERED AND ADJUDGED 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 exhausted under 28 U.S.C. § 2254(b)-(c).

20040505

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