Opinion
Case No. 2:04-CV-400 TS.
July 5, 2004
ORDER
Petitioner, Roy Robertson, filed a habeas corpus petition.See 28 U.S.C.A. § 2254 (West 1994 Supp. 2003). Petitioner was convicted of crimes in state court on March 23, 2004. He is now serving a five-to-life sentence. He states that he has a direct appeal pending.
Petitioner clearly has not yet exhausted his state remedies as to his federal claims. Before Petitioner may seek review of a Utah conviction in federal court, he must exhaust all available remedies in the Utah court system. See id. § 2254(b) (c);Picard v. Connor, 404 U.S. 270, 275, 276, 92 S.Ct. 509, 512 (1971); Knapp v. Henderson, No. 97-1188, 1998 WL 778774, at *2 (10th Cir. Nov. 9, 1998). To exhaust his remedies, Petitioner must properly present to the highest Utah court the federal constitutional issues on which he seeks relief. See Picard, 92 S.Ct. at 512-13. Moreover, "the pending state action might result in reversal of the conviction, mooting the federal case."Cen v. Castro, No. C 02-2094 PJH (PR), 2002 U.S. Dist. LEXIS 9314, at *1 (N.D. Cal. May 1, 2002). On the basis of failure to exhaust, then, this federal petition is barred because of Petitioner's pending appeal.
A related ground for denying this federal petition is theYounger abstention doctrine. See Housley v. Williams, No. 92-6110, 1993 U.S. App. LEXIS 5592, at *8 (10th Cir. Mar. 12, 1993) (unpublished); Cen, 2002 U.S. Dist. LEXIS 9314, at *2. After all, "[t]he rule of exhaustion in federal habeas corpus actions is rooted in considerations of federal-state comity," as defined in Younger v. Harris, 401 U.S. 37, 44 (1971). Preiser v. Rodriguez, 411 U.S. 475, 491, 93 S.Ct. 1827, 1837 (1973). The test for determining whether to abstain has three parts: "First, is there a pending state judicial proceeding; `second, do the proceedings implicate important state interests; and third, is there an adequate opportunity in the state proceedings to raise constitutional challenges.'" Oltremari ex rel. McDaniel v. Kan. Social Rehab. Serv., 871 F. Supp. 1331, 1356 (D. Kan. 1994) (quoting Middlesex County Ethics Comm. v. Garden State Bar Ass'n, 457 U.S. 423, 432, 102 S.Ct. 2515, 2521 (1982)).
Applying the test here, the Court first determines based on Petitioner's petition that there is a pending state judicial proceeding. Second, the great importance of the state interest is established because criminal proceedings are at issue. See Oltremari ex rel. McDaniel, 871 F. Supp. at 1356 (quoting Middlesex County Ethics Comm., 457 U.S. at 432). Finally, Petitioner has an adequate chance to raise any of his federal constitutional challenges in state court. In fact, as explained above, by federal statute, he generally must raise his challenges in state court first before bringing them here. See 28 U.S.C.A. § 2254(b) (c) (West Supp. 2003); Picard, 404 U.S. at 275; Knapp, 1998 WL 778774, at *2.
Accordingly, IT IS HEREBY ORDERED that Petitioner's § 2254 petition is dismissed without prejudice.