Opinion
Case No. CV 04-0056-S-LMB.
February 26, 2004
ORDER
Daniel Bellon filed a Petition for Writ of Habeas Corpus in this Court on January 30, 2004. Petitioner has consented to a United States Magistrate Judge exercising jurisdiction in this matter. The Court has conducted an initial review of the Petition pursuant to Rule 4 of the Rules Governing Section 2254 Cases and 28 U.S.C. § 2243. The Court has concluded, for the following reasons, that the Petition shall be dismissed for failure to exhaust state court remedies.
I. BACKGROUND
Petitioner pleaded guilty in state district court to one count of issuing a check with insufficient funds, and he was sentenced to a fixed two-year prison term. Judgment was entered on June 16, 2003. Petitioner has now filed this habeas Petition, raising various constitutional issues. Petitioner also filed a state petition for post-conviction relief on January 15, 2004, raising similar claims.II. REVIEW OF PETITION
A. Standard of Law
To have a habeas corpus petition heard in federal court, a petitioner must allege that he is in custody under a state court judgment and that this custody violates the Constitution, laws, or treaties of the United States. 28 U.S.C. § 2254(a). The Court is required to review the petition upon receipt to determine whether it is subject to summary dismissal. Rule 4 of the Rules Governing Section 2254 Cases. Summary dismissal is appropriate where "it plainly appears from the face of the petition and any exhibits annexed to it that the petitioner is not entitled to relief in the district court." Id.
Summary dismissal may also be warranted if a petitioner has not "exhausted" his state court remedies relative to a particular federal claim. 28 U.S.C. § 2254(b). A petitioner has not exhausted his state court remedies if he still has the right to raise his claims under any available state court procedure. 28 U.S.C. § 2254(c). In addition, to exhaust his claims properly, a petitioner must fairly present his claims to the highest state court in a procedurally proper manner under state law before raising them in a federal habeas petition. O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999).
B. Discussion
In this case, Petitioner alleges that the state violated his constitutional rights under the Privileges and Immunities Clause, the Supremacy Clause, and the Confrontation Clause. See Petition for Writ of Habeas Corpus, pp. 2-3. Although these claims are vague, conclusory, and of dubious legal validity, the Court finds it unnecessary to address these deficiencies because it is clear that Petitioner has not exhausted his state court remedies. Petitioner filed a petition for post-conviction relief in state court on January 15, 2004, in which he raises primarily the same claims. Petitioner must exhaust this state court procedure, and present his claims properly before the Idaho Supreme Court, before he raises his claims in federal court. 28 U.S.C. § 2254(c). Accordingly, the Court will dismiss the Petition without prejudice.
Petitioner may file a new federal petition, if necessary, after he has exhausted his claims in state court. Petitioner must be mindful of the one-year statute of limitation for federal habeas petitions, contained within 28 U.S.C. § 2244(d), and its application to any future federal Petition.
III. MOTION TO STAY FEDERAL PROCEEDINGS
Petitioner has also filed an ex parte "Motion to Place Case at Moot" (Docket No. 7). The Court construes this Motion as a request to stay the federal habeas proceeding while Petitioner pursues his state court remedies. The Court, however, does not have the option of holding in abeyance a petition that contains only unexhausted claims, such as the Petition in this case, and it must instead dismiss such a petition. See Jiminez v. Rice, 276 F.3d 478, 481 (9th Cir. 2001). As a result, Petitioner's Motion will be denied.
Petitioner also seeks permission to proceed ex parte. Given the subject matter of the Motion, the Court finds no reason to issue an order ex parte.
IV. ORDER
NOW THEREFORE IT IS HEREBY ORDERED that the Petition for Writ of Habeas Corpus (Docket No. 3) shall be DISMISSED, without prejudice, for failure to exhaust state court remedies.IT IS FURTHER ORDERED that Petitioner's Motion to Proceed In Forma Pauperis (Docket No. 1) is DENIED as MOOT.
IT IS FURTHER ORDERED that Petitioner's Motion to Place Case at Moot (Docket No. 7), which the Court construes as a Motion to Stay, and which will not be decided ex parte, is DENIED.