IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA
August 4, 2008
REGINALD SMITH, PETITIONER,
PEOPLE OF THE STATE OF CALIFORNIA; J. M. MORIMOTO; J. BLACK; S. SMITHSTEIN; M. DAVIS; J. ENCINIAS; R. BELES; KAREN MEREDITH, RESPONDENTS.
DISMISSAL WITHOUT PREJUDICE
This is a habeas case filed pro se by a state prisoner. Petitioner concedes in his petition that he presently has a state habeas petition pending before the Alameda County Superior Court.
The Ninth Circuit has held unequivocally that the habeas exhaustion requirement is not satisfied if there is a pending proceeding in state court, even if the issue the petitioner seeks to raise in federal court has been finally determined by the highest available state court. Sherwood v. Tomkins, 716 F.2d 632, 634 (9th Cir. 1983). This is because the pending state action might result in reversal of the conviction on some other ground, mooting the federal case. Id. This is true not only in the Sherwood fact pattern, where although a state direct appeal was pending the federal issues had been decided by the state courts via another procedural route, but also to this fact pattern, in which a state post-conviction proceeding is pending. Schnepp v. Oregon, 333 F.2d 288 (9th Cir. 1964).
Although Younger abstention might seem a better rationale for this requirement than exhaustion, see Phillips v. Vasquez, 56 F.3d 1030, 1038-39 (9th Cir. 1995) (concurring opinion), the requirement is nevertheless well-established in this circuit.
The petition must be dismissed without prejudice to refiling it when no further proceedings are pending in the California state courts. See Sherwood, 716 F.2d at 634 (if state court action is pending, claims are not exhausted).
For the reasons set out above, the petition is DISMISSED without prejudice.
The clerk shall close the file.
IT IS SO ORDERED.
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