The opinion of the court was delivered by: Claudia Wilken United States District Judge
ORDER OF DISMISSAL WITH LEAVE TO AMEND AND ADDRESSING PENDING MOTIONS (Docket nos. 3, 5, 6, 7, 8, 10)
Petitioner Raymond Crowther, a State prisoner incarcerated at the San Mateo County Jail, has filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 in which he seeks leave to proceed in forma pauperis. Venue is proper because Petitioner is challenging the validity of a plea bargain entered into in San Mateo County, which is located in this judicial district. See 28 U.S.C. § 2241(d).
According to the allegations in the petition and the documents attached thereto, on July 13, 2004, Petitioner pled no contest to a violation of California Penal Code section 666 (petty theft with a prior) and admitted allegations that he had suffered one prison prior and two or more prior felonies. On December 10, 2004, Petitioner was sentenced to four years in prison, execution of sentence was suspended and he was admitted to three years probation. Subsequently, Petitioner's probation was revoked and he was incarcerated at the San Mateo County Jail.
On January 1, 2005, Petitioner filed a State petition for a writ of habeas corpus in San Mateo County Superior Court claiming that his defense attorney intimidated him into entering into the plea bargain and that the sentencing court violated the plea agreement and imposed an illegal sentence. On February 5, 2005, the superior court entered an order denying the petition for lack of jurisdiction because "Court records indicate that Petitioner's case is currently on appeal and that the grounds for appeal are related to the plea proceedings." (See "Order of Denial" attached to Petitioner's Motion to Amend (docket no. 5).) Petitioner then filed a State habeas petition in the California Supreme Court which the State was directed to answer informally. In an informal brief filed on March 28, 2005, the State argued the petition should be denied because, inter alia, Petitioner had been granted a certificate of probable cause and his opening brief on direct appeal was due to be filed on March 30, 2005, and Petitioner's appellate counsel had stated he would be litigating the issue of the plea advisements given as well as the validity of the pre-trial credit waiver. (See "Informal Response to Petition for Writ of Habeas Corpus" attached to Petitioner's Motion to Amend (docket no. 6).) On April 27, 2005, the California Supreme Court issued an Order denying the petition summarily without citation or comment.
Petitioner filed the present petition on January 5, 2005, and since has filed various motions requesting leave to amend his petition with the documents discussed above. Petitioner has not, however, requested leave to amend his petition or otherwise provided the Court with any document which reflects the decision of the California Court of Appeal and/or the California Supreme Court with respect to Petitioner's direct appeal.
Prisoners in State custody who wish to challenge in federal habeas proceedings either the fact or length of their confinement are first required to exhaust State judicial remedies by presenting the highest State court available with a fair opportunity to rule on the merits of each and every claim they seek to raise in federal court. See 28 U.S.C. § 2254(b),(c)); Rose v. Lundy, 455 U.S. 509, 515-16 (1982). The exhaustion requirement is not satisfied if there is a challenge to the fact or length of confinement pending in State court. See Sherwood v. Tomkins, 716 F.2d 632, 634 (9th Cir. 1983). If available State remedies have not been exhausted as to all claims, the district court must dismiss the petition. See Rose v. Lundy, 455 U.S. at 510; Guizar v. Estelle, 843 F.2d 371, 372 (9th Cir. 1988). A dismissal solely for failure to exhaust is not a bar to returning to federal court after exhausting available State remedies. See Trimble v. City of Santa Rosa, 49 F.3d 583, 586 (9th Cir. 1995).
Because it appears that Petitioner's direct appeal is pending before the State courts, his claim is unexhausted for purposes of federal habeas corpus review. Accordingly, the petition must be DISMISSED. If Petitioner's claims have been exhausted on direct appeal since he last communicated with the Court, however, he may file an amended petition so alleging within thirty days of the date of this Order. The failure to do so will result in the dismissal of this petition without prejudice.
For the foregoing reasons the Court orders as follows:
1. Leave to proceed in forma pauperis is GRANTED. (Docket no. 3.)
2. The motions to amend the petition to add relevant documents from State court proceedings are ...