Opinion
No. C 02-2033 MMC (PR), (Docket Nos. 2 3)
August 6, 2002
ORDER OF DISMISSAL
Alonzo Evans ("petitioner"), a California prisoner, filed this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Following a review of his complaint, the Court ordered respondent to show cause why the petition should not be granted based on petitioner's nine cognizable claims. Respondent has filed a motion to dismiss the petition conviction and that such petition was pending at the time the instant petition was filed. See Sherwood v. Tomkins, 716 F.2d 632, 634 (9th Cir. 1983). In lieu of an opposition, petitioner has filed a declaration in which he states that he wishes to pursue his claims in state court and return to federal court after the state court proceedings have ended.
The exhaustion requirement applicable to federal habeas petitions, see 28 U.S.C. § 2254(b)-(c), is not satisfied if there is a pending post-conviction proceeding in state court, whether or not the issue raised in the pending state petition is included in the federal petition. See Sherwood v. Tomkins, 716 F.2d 632, 634 (9th Cir. 1983). If a post-convictiol challenge to a criminal conviction is pending in state court, a potential federal habeas petitioner must await the outcome of the challenge before his state remedies are consider exhausted. See id. A pending state court challenge may result in the reversal of the petitioner's conviction, thereby mooting the federal petition. See id. (citations omitted).
Petitioner was convicted on August 30, 2000, in San Mateo County Superior Court of theft with a prior theft conviction and was sentenced to thirty-two months in state prison. The California Court of Appeal denied petitioner's habeas petition in February 2002, and his direct appeal in April 2002. In April 2002, the Supreme Court of California denied a petition for review of the denial of petitioner's habeas petition. On May 31, 2002, petitioner filed a petition for review of the denial of his direct appeal. That petition remains pending at this time. Because petitioner has a petition for review now pending in the Supreme Court of California, the instant petition for a writ of habeas corpus is barred by Sherwood. Respondent also correctly notes, and petitioner does not dispute, that six of the claims petitioner has presented in the instant federal petition are not exhausted because they were never presented to the Supreme Court of California. See 28 U.S.C. § 2254 (b)-(c). A habeas petition may not proceed in federal court ifit contains even a single claim as to which state remedies have not been exhausted under 28 U.S.C. § 2254(b)-(c). See Rose v. Lundv, 455 U.S. 509, 522 (1982). As a result, before petitioner returns to federal court after the above-referenced state court proceedings are completed, he must first exhaust all of the claims he desires to bring in federal court by presenting them to the Supreme Court of California.
In light of the foregoing, respondent's motion to dismiss is GRANTED. This action is DISMISSED without prejudice to refiling once all state court post-conviction challenges to petitioner's conviction have been completed and all claims petitioner wishes to raise in federal court have been exhausted under 28 U.S.C. § 2254 (b)-(c).
This order terminates all pending motions. The Clerk shall close the file.
IT IS SO ORDERED.