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. 2, 3, 4)
Petitioner Pamela McCaffery, a State prisoner incarcerated at Valley State Prison for Women, has filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 in which she seeks leave to proceed in forma pauperis. Venue is proper because Petitioner is challenging the validity of a conviction suffered in Alameda 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, in 1998 an Alameda County Superior Court jury found Petitioner guilty of second-degree murder. On June 30, 1998, she was sentenced to fifteen years to life with a consecutive sentence of three years for gun use. On October 20, 1999, the California Court of Appeal affirmed the conviction on direct appeal, and on January 13, 2000, the California Supreme Court denied a petition for review. On December 30, 2003, Petitioner filed a State habeas petition, asking the California Court of Appeal to recall the remittitur in her prior appeal and reissue its opinion so that she could petition the United States Supreme Court for a writ of certiorari. Petitioner alleged in her State petition that appellate counsel had failed to inform her about her ability to do so and she had missed the deadline. The court of appeal denied the petition without citation or comment on February 13, 2004. On March 3, 2004, Petitioner filed a habeas petition apparently seeking the same relief in the California Supreme Court. That petition was denied without citation or comment on December 15, 2004.
Petitioner filed the present petition on February 17, 2005, stating that its sole purpose is to compel the State court of appeal to recall the remittitur on grounds of ineffective assistance of appellate counsel so that she may seek certiorari from the United States Supreme Court. In letters received by this Court on March 9 and 28, 2005, Petitioner informs the Court that she currently has a State habeas petition pending before the California Supreme Court and seeks advice from the Court on her ability to amend her federal petition.
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). An application to recall the remittitur may be used as an adjunct to, or in place of, a State petition for a writ of habeas corpus in cases in which the appropriate remedy is the reinstatement of the appeal.*fn1
See Hayward v. Stone, 496 F.2d 844, 846 (9th Cir. 1974). If a petitioner uses an application to recall the remittitur in appropriate circumstances, the denial of the application followed by a denial of a petition for hearing by the California Supreme Court exhausts State court remedies for purposes of federal habeas corpus jurisdiction, unless the California court expressly or by an appropriate citation indicates that the denial of the application is on procedural grounds. See id. (petitioner properly exhausted claim of ineffective assistance of counsel by filing application to recall remittitur in California Court of Appeal and petition for hearing in California Supreme Court).
Because Petitioner states that she has a State habeas petition still pending before the California Supreme Court, her present petition appears to be unexhausted for purposes of federal habeas corpus review. Moreover, it is unclear to this Court whether Petitioner is seeking only the reinstatement of her appeal on grounds of ineffective assistance of appellate counsel or also is seeking federal habeas corpus relief based on other grounds for relief raised on direct appeal and/or currently pending before the State supreme court. Accordingly, the petition must be DISMISSED for Petitioner to file an amended petition which clarifies the nature and exhaustion status of all claims which she seeks to raise in her federal petition. If Petitioner seeks to add newly exhausted claims to her petition she shall include those in the amended petition as well. Petitioner shall use the form provided with this Order to file her amended petition.
For the foregoing reasons the Court orders as follows:
1. Leave to proceed in forma pauperis is GRANTED. (Docket no. 2.)
2. The motions for an evidentiary hearing and for the appointment of counsel are DENIED without prejudice as ...