Opinion
No. CIV S-11-2233-GEB-CMK-P
01-23-2012
MICHAEL A. GOLDMAN, Petitioner, v. STEVE MOORE, Respondent.
FINDINGS AND RECOMMENDATIONS
Petitioner, a state prisoner proceeding pro se, brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Pending before the court is respondent's motion to dismiss (Doc. 22).
At the time this action was commenced, petitioner was a pre-trial detainee. He has since been convicted and is now in custody pursuant to a state court judgment. Respondent argues that the petition must be dismissed as unexhausted because petitioner's direct appeal is still pending in the California Court of Appeal. The court agrees. See 28 U.S.C. § 2254(b)(1)(A); see also Sherwood v. Tomkins, 716 F.2d 632 (9th Cir. 1983) (holding that a federal habeas petition is premature when the petitioner's direct criminal appeal is pending in state court); Picard v. Connor, 404 U.S. 270 (1971).
Based on the foregoing, the undersigned recommends that respondent's motion to dismiss (Doc. 22) be granted.
These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 14 days after being served with these findings and recommendations, any party may file written objections with the court. Responses to objections shall be filed within 14 days after service of objections. Failure to file objections within the specified time may waive the right to appeal. See Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
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CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE