Hearn v. Ryan et al

Filing 4

ORDER granting 2 Motion for Leave to Proceed in forma pauperis. Petitioner's Petition for Habeas Corpus (Doc. 1) and this case are dismissed without prejudice. The Clerk of Court must enter judgment accordingly and close this case. Pursuan t to Rule 11(a) of the 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. Signed by Judge David G Campbell on 4/10/12.(DMT)

1
2

MDR

WO

3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8
9

Nathaniel Hearn,
Petitioner,

10
11

vs.

12

Director Charles Ryan, et al.,
Respondents.

13

)
)
)
)
)
)
)
)
)
)

No. CV 12-659-PHX-DGC (MEA)
ORDER

14
15

On March 28, 2012, Petitioner Nathaniel Hearn, who is confined in the Arizona State

16

Prison Complex-Eyman in Florence, Arizona, filed a pro se Petition for Writ of Habeas

17

Corpus pursuant to 28 U.S.C. § 2254 (Doc. 1) and an Application to Proceed In Forma

18

Pauperis (Doc. 2).

19

I.

Application to Proceed In Forma Pauperis

20

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

21

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

22

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

23

II.

Petition

24

A.

25

On March 6, 2008, Petitioner filed a § 2254 petition in Hearn v. Ryan, 08-CV-448-

26

PHX-DGC, challenging his convictions in Maricopa County Superior Court case #CR2004-

27

6251. In an August 15, 2011 Order (Doc. 49 in 08-CV-448), the Court granted the § 2254

28

Background

1

petition and directed Respondents to “release Petitioner within sixty (60) days from the date

2

of th[e] Order, unless the State of Arizona commences proceedings to retry him.”

3

Respondents appealed to the Ninth Circuit Court of Appeals (Doc. 51 in 08-CV-448). On

4

January 5, 2012, Respondents filed a Motion to Dismiss Appeal in the Ninth Circuit (Doc. 18

5

in 11-17164). Respondents sought to have the appeal dismissed as moot and the August 15th

6

Order vacated because on December 21, 2011, Petitioner pled guilty to robbery in CR2004-

7

6251 and was sentenced to an 8-year term of imprisonment. In a February 14, 2012 Order

8

(Doc. 19 in 11-17164), the Ninth Circuit granted the motion to dismiss, dismissed the appeal,

9

vacated the August 15th Judgment, and remanded that case to this Court for dismissal of the

10

§ 2254 petition. The Mandate was issued on March 7, 2012.

11

B.

Current Petition

12

In his Petition, Petitioner names Director Charles Ryan as Respondent and the Arizona

13

Attorney General as an Additional Respondent. He raises one ground for relief, asserting

14

that his due process rights have been violated because he is “being held in prison for a

15

sentence which not only has expired but was vacated.”1 Petitioner states that he has not

16

presented this issue to the Arizona appellate courts.

17

III.

Discussion

18

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

19

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

20

U.S. 838, 842 (1999). “In other words, the state prisoner must give the state courts an

21

opportunity to act on his claims before he presents those claims to a federal court in a habeas

22

petition.” O’Sullivan, 526 U.S. at 842. The failure to exhaust subjects the Petition to

23

dismissal. See Gutierrez v. Griggs, 695 F.2d 1195, 1197 (9th Cir. 1983).

24

Before Petitioner may seek habeas corpus relief in this Court he must first present his

25

claims to the state courts and exhaust his state court remedies. The fact that a calculation of

26
1

27
28

Petitioner was sentenced to an 8-year term of imprisonment with 2,889 days of
presentence credit.
-2-

1

his release date is involved does not shield him from the exhaustion requirement.2 Petitioner

2

states that he has not presented his grounds for relief to the Arizona Court of Appeals or

3

Arizona Supreme Court. Thus, this habeas action is premature. The Court will dismiss the

4

case without prejudice.

5

IT IS ORDERED:

6

(1)

Petitioner’s Application to Proceed In Forma Pauperis (Doc. 2) is granted.

7

(2)

Petitioner’s Petition for Habeas Corpus (Doc. 1) and this case are dismissed

8

without prejudice.

9

(3)

The Clerk of Court must enter judgment accordingly and close this case.

10

(4)

Pursuant to Rule 11(a) of the Rules Governing Section 2254 Cases, in the event

11

Petitioner files an appeal, the Court declines to issue a certificate of appealability because

12

reasonable jurists would not find the Court’s procedural ruling debatable. See Slack v.

13

McDaniel, 529 U.S. 473, 484 (2000).
DATED this 10th day of April, 2012.

14
15
16
17
18
19
20
21
22
23
24
25
26
2

27
28

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).
-3-