Neuendorf v. Ryan et al

Filing 21

ORDER Petitioner's Amended Petition 16 and this action are dismissed without prejudice for failure to exhaust state court remedies. Petitioner's 7/13/12 Motion to Appoint Counsel 14 is denied as moot. Petitioner's 8/13/12 "Writ of Mandamus" 19 is denied as moot. The Clerk of Court must enter judgment and close the case. Signed by Senior Judge Robert C Broomfield on 9/10/12.(TLJ)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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John Calvin Neuendorf, II,
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 12-755-PHX-RCB (DKD)
ORDER

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Petitioner John Calvin Neuendorf, II, who is confined in the Arizona State Prison

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Complex-Lewis, filed pro se Petition Under 28 U.S.C. § 2254 for a Writ of Habeas Corpus

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by a Person in State Custody and an Application to Proceed In Forma Pauperis. On April

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26, 2012, Petitioner filed a Motion for Leave to Amend and on May 4, 2012, Petitioner filed

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a second Motion for Leave to Amend. In a June 29, 2012 Order, the Court granted the

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Application to Proceed and granted Petitioner leave to file an amended petition. On July 27,

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2012, Petitioner filed an Amended Petition (Doc. 16).

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Petitioner has also filed a July 13, 2012 Motion to Appoint Counsel (Doc. 14), an

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August 13, 2012 “Writ of Mandamus” (Doc. 19), and multiple letters. The Court will

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dismiss the Amended Petition and this action for failure to exhaust state court remedies and

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will deny the pending Motions as moot.

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I.

Amended Petition

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In his Amended Petition, Petitioner challenges his April 8, 2011 conviction in the

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Superior Court in Maricopa County, case number CR 2009-167757-001DT, for aggravated

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assault and attempted aggravated assault.

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imprisonment and four years’ probation.

Petitioner was sentenced to ten years’

Petitioner raises four grounds for relief but affirmatively alleges that he has not

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presented any of his claims to the Arizona Court of Appeals.

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II.

Exhaustion

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Before a federal court may grant habeas relief, a prisoner must first have exhausted

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

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526 U.S. 838, 842 (1999). The federal court will not entertain a petition for writ of habeas

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corpus unless each and every issue has been exhausted. Rose v. Lundy, 455 U.S. 509, 521-

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22 (1982); Olvera v. Guirbino, 371 F.3d 569, 572 (9th Cir. 2004) (district court may not

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consider a claim until petitioner has properly exhausted all available remedies). When

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seeking habeas relief, the burden is on the habeas petitioner to show that he has properly

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exhausted each claim. Cartwright v. Cupp, 650 F.2d 1103, 1104 (9th Cir. 1981) (per

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curiam).

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To exhaust claims, a prisoner must give the state courts a “fair opportunity” to act on

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his claims. Castillo v. McFadden, 370 F.3d 882 (9th Cir. 2004). He must describe both the

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operative facts and the federal legal theory so that the state courts have a “fair opportunity”

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to apply controlling legal principles to the facts bearing upon his constitutional claim.” Kelly

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v. Small, 315 F.3d 1063, 1066 (9th Cir. 2003). A prisoner seeking to exhaust claims in state

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court before filing a federal habeas action should diligently pursue his available state

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remedies to avoid application of the one-year limitation period. See Shelby v. Bartlett, 391

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F.3d 1061, 1066 (9th Cir. 2004). 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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Petitioner affirmatively alleges that he has not exhausted state court remedies. The

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Court will therefore dismiss the Amended Petition and this action.

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IT IS ORDERED:
(1)

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Petitioner’s Amended Petition (Doc. 16) and this action are dismissed without

prejudice for failure to exhaust state court remedies.
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Petitioner’s July 13, 2012 Motion to Appoint Counsel (Doc. 14) is denied as

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Petitioner’s August 13, 2012 “Writ of Mandamus” (Doc. 19) is denied as

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(4)

The Clerk of Court must enter judgment and close the case.

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DATED this 10th day of September, 2012.

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moot.

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moot.

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