Williams v. Ryan et al

Filing 6

ORDER granting 4 Petitioner's Motion for Leave to Proceed in forma pauperis. The Petition 1 and this action are dismissed without prejudice as premature. The Clerk of Court must enter judgment and close this case. Signed by Judge G Murray Snow on 12/12/11.(TLJ)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Lamares Lee Williams,
Petitioner,

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vs.

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Charles L. Ryan, et al.,
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Respondents.
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No. CV 11-1975-PHX-GMS (MEA)
ORDER

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Petitioner Lamares Lee Williams, who is confined in the Arizona State Prison

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Complex-Tucson, filed a pro se Petition for Writ of Habeas Corpus pursuant to 28 U.S.C.

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§ 2254. In an October 27, 2011 Order, the Court directed Petitioner to pay the filing fee or

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file an Application to Proceed In Forma Pauperis. On November 2, 2011, Petitioner filed

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an Application to Proceed In Forma Pauperis. The Court will dismiss the Petition as

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premature.

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I.

Application to Proceed In Forma Pauperis

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Petitioner’s Application to Proceed In Forma Pauperis indicates that his inmate trust

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account balance is less than $25.00. Accordingly, the Application to Proceed In Forma

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Pauperis will be granted. See LRCiv 3.5(b).

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II.

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Petition
Petitioner was convicted in Maricopa County Superior Court, case #CR 2009-160889-

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002, of misconduct involving a weapon and was sentenced to a 7-year term of imprisonment.

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Petitioner names Charles L. Ryan as Respondent and the Arizona Attorney General as an

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additional Respondent.

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Petitioner states that he presently has a petition for post-conviction relief pending

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before the Maricopa County Superior Court.

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III.

Exhaustion

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Before the court may grant habeas relief to a state prisoner, the prisoner must exhaust

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remedies available in the state courts. 28 U.S.C. § 2254(b)(1); O’Sullivan v. Boerckel, 526

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U.S. 838, 842 (1999). To exhaust a claim, a petitioner must describe both the operative facts

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and the federal legal theory so that the state courts have a “fair opportunity” to apply

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controlling legal principles to the facts bearing upon his constitutional claim. Kelly v. Small,

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315 F.3d 1063, 1066 (9th Cir. 2003). In cases not carrying a life sentence or death penalty,

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claims are exhausted once the Arizona Court of Appeals has ruled on them. See Swoopes

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v. Sublett, 196 F.3d 1008, 1010 (9th Cir. 1999).

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In light of the pending proceedings in state court, which could affect Petitioner’s

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sentence and which could also ultimately affect these proceedings, it would be inappropriate

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for this Court to rule on Petitioner's claims at this time. See Sherwood v. Tomkins, 716 F.2d

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632, 634 (9th Cir. 1983) (even where claim to be challenged has been finally settled in state

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courts, petitioner must await outcome of his appeal in state court before remedies are

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exhausted); Schnepp v. Oregon, 333 F.2d 288 (9th Cir. 1964) (per curiam) (pending post-

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conviction proceedings precluded grant of writ of habeas corpus). Because this habeas action

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is premature, the Court will dismiss the case without prejudice.

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IT IS ORDERED:

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(1)

Petitioner’s Application to Proceed In Forma Pauperis (Doc. 4) is granted.

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(2)

The Petition (Doc. 1) and this action are dismissed without prejudice as

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premature. The Clerk of Court must enter judgment and close this case.
DATED this 12th day of December, 2011.

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