Opinion
No. C 03-4510 SI (pr)
October 22, 2003
JUDGMENT
This action is dismissed without prejudice to petitioner filing a new petition for writ of habeas corpus after he exhausts his state court remedies.
IT IS SO ORDERED AND ADJUDGED.
ORDER OF DISMISSAL
Diontay Rachon Shackelford, a California state inmate incarcerated at the Sierr Conservation Center in Jamestown, filed this action seeking a writ of habeas corpus pursuar to 28 U.S.C. § 2254. His petition is now before the court for review pursuant to 28 U.S.C § 2243 and Rule 4 of the Rules Governing Section 2254 Cases.
Shackelford states in his petition that he was convicted in San Francisco County Superi Court of being a felon in possession of a firearm. He also states that he was sentenced to a f year term in prison on July 23, 2003. Shackelford further states that his appeal is "current' the California Court of Appeal and he has not yet been to the California Supreme Co (Petition, p. 4.)
Prisoners in state custody who want to challenge either the fact or length of I confinement in federal court by a petition for a writ of habeas corpus are first required to exl state judicial remedies, either on direct appeal or through collateral proceedings, by prese the highest state court available with a fair opportunity to rule on the merits of each and issue they seek to raise in federal court. See 28 U.S.C. § 2254(b)(1)(A),(c); Duckwc Serrano, 454 U.S. 1, 3 (1981). If available state remedies have not been exhausted as to all claims, the district court must dismiss the petition. See id. at 4-5. The exhaustion requirement is not satisfied if there is a pending post-conviction proceeding in state court. See Sherwood v. Tomkins, 716 F.2d 632, 634 (9th Cir. 1983). If an appeal or collateral challenge of a state criminal conviction is pending, a would-be federal habeas petitioner must await the outcome of the state court action before his state remedies are considered exhausted, even where the issue to be raised in the petition for writ of habeas corpus has been finally settled in the state courts. See id. Even if the federal constitutional question raised by the petitioner cannot be resolved in a pending state action, that action may result in the reversal of the petitioner's conviction on some other ground, thereby mooting the federal question. See id. (citations omitted).
Shackelford's appeal is currently pending in the California Court of Appeal. He must await the outcome of the state court challenge to his conviction before presenting his claims in federal court. After his action in the California Court of Appeal concludes, Shackelford must present all of his claims to the California Supreme Court before filing a federal petition for writ of habeas corpus asserting those claims. Until that proceeding is concluded, a habeas petition in this court is premature and must be dismissed. Because he has not exhausted his state court remedies, his petition is DISMISSED.
After Shackelford exhausts his state court remedies, he may file a new petition for writ of habeas corpus. He is cautioned not to file an amended petition in this action and not to use the case number for this action because this action is being closed today. When he files a new petition, he should put no case number on the first page, and should submit it with the $5.00 filing fee or a completed in forma pauperis application. At that time, the court will give the new petition a new case number.
Shackelford's in forma pauperis application is GRANTED.
IT IS SO ORDERED.