Opinion
No. CV 12-659-PHX-DGC (MEA)
04-10-2012
Nathaniel Hearn, Petitioner, v. Director Charles Ryan, et al., Respondents.
ORDER
On March 28, 2012, Petitioner Nathaniel Hearn, who is confined in the Arizona State Prison Complex-Eyman in Florence, Arizona, filed a pro se Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 1) and an Application to Proceed In Forma Pauperis (Doc. 2). I. Application to Proceed In Forma Pauperis
Petitioner's Application to Proceed In Forma Pauperis indicates that his inmate trust account balance is less than $25.00. Accordingly, the Application to Proceed In Forma Pauperis will be granted. See LRCiv 3.5(b).
II. Petition
A. Background
On March 6, 2008, Petitioner filed a § 2254 petition in Hearn v. Ryan, 08-CV-448-PHX-DGC, challenging his convictions in Maricopa County Superior Court case #CR2004-6251. In an August 15, 2011 Order (Doc. 49 in 08-CV-448), the Court granted the § 2254 petition and directed Respondents to "release Petitioner within sixty (60) days from the date of th[e] Order, unless the State of Arizona commences proceedings to retry him." Respondents appealed to the Ninth Circuit Court of Appeals (Doc. 51 in 08-CV-448). On January 5, 2012, Respondents filed a Motion to Dismiss Appeal in the Ninth Circuit (Doc. 18 in 11-17164). Respondents sought to have the appeal dismissed as moot and the August 15th Order vacated because on December 21, 2011, Petitioner pled guilty to robbery in CR2004-6251 and was sentenced to an 8-year term of imprisonment. In a February 14, 2012 Order (Doc. 19 in 11-17164), the Ninth Circuit granted the motion to dismiss, dismissed the appeal, vacated the August 15th Judgment, and remanded that case to this Court for dismissal of the § 2254 petition. The Mandate was issued on March 7, 2012.
B. Current Petition
In his Petition, Petitioner names Director Charles Ryan as Respondent and the Arizona Attorney General as an Additional Respondent. He raises one ground for relief, asserting that his due process rights have been violated because he is "being held in prison for a sentence which not only has expired but was vacated." Petitioner states that he has not presented this issue to the Arizona appellate courts.
Petitioner was sentenced to an 8-year term of imprisonment with 2,889 days of presentence credit.
III. Discussion
Before the court may grant habeas relief to a state prisoner, the prisoner must exhaust remedies available in the state courts. 28 U.S.C. § 2254(b)(1); O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999). "In other words, the state prisoner must give the state courts an opportunity to act on his claims before he presents those claims to a federal court in a habeas petition." O'Sullivan, 526 U.S. at 842. The failure to exhaust subjects the Petition to dismissal. See Gutierrez v. Griggs, 695 F.2d 1195, 1197 (9th Cir. 1983).
Before Petitioner may seek habeas corpus relief in this Court he must first present his claims to the state courts and exhaust his state court remedies. The fact that a calculation of his release date is involved does not shield him from the exhaustion requirement. Petitioner states that he has not presented his grounds for relief to the Arizona Court of Appeals or Arizona Supreme Court. Thus, this habeas action is premature. The Court will dismiss the case without prejudice.
A state-court petition for post-conviction relief can be used if "[t]he person is being held in custody after the sentence imposed has expired." Ariz. R. Crim. P. 32.1(d).
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IT IS ORDERED:
(1) Petitioner's Application to Proceed In Forma Pauperis (Doc. 2) is granted.
(2) Petitioner's Petition for Habeas Corpus (Doc. 1) and this case are dismissed without prejudice.
(3) The Clerk of Court must enter judgment accordingly and close this case.
(4) Pursuant to Rule 11(a) ofthe Rules Governing Section 2254 Cases, in the event Petitioner files an appeal, the Court declines to issue a certificate of appealability because reasonable jurists would not find the Court's procedural ruling debatable. See Slack v. McDaniel, 529 U.S. 473, 484 (2000).
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David G. Campbell
United States District Judge