Urias v. Arizona, State of et al

Filing 6

ORDER - Petitioner's 2 Application to Proceed In Forma Pauperis is granted. Petitioner's 1 Petition for Habeas Corpus and this case are dismissed without prejudice. The Clerk of Court must enter judgment accordingly and close this cas e. Pursuant 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. See Slack v. McDaniel, 529 U.S. 473, 484 (2000).Signed by Judge David G Campbell on 08/28/2015. (ATD)

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1 2 MDR WO 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Juan Torres Urias, 10 No. CV 15-1616-PHX-DGC (JFM) Petitioner, 11 v. 12 State of Arizona, et al., ORDER 13 Respondents. 14 15 Petitioner Juan Torres Urias, who is confined in the Corrections Corporation of 16 America’s Central Arizona Detention Center in Florence, Arizona, has filed a pro se 17 Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 1) and an 18 Application to Proceed In Forma Pauperis (Doc. 2). The Court will dismiss the Petition 19 without prejudice. 20 I. Application to Proceed In Forma Pauperis 21 Petitioner’s Application to Proceed In Forma Pauperis indicates that his inmate 22 trust account balance is less than $25.00. Accordingly, the Application to Proceed In 23 Forma Pauperis will be granted. See LRCiv 3.5(b). 24 II. Petition 25 Petitioner was convicted in Maricopa County Superior Court, case #CR 2014- 26 133421, of one count of Threatening or Intimidating and one count of Threatening and 27 Intimidating and Domestic Violence, and was sentenced to concurrent, six-month terms 28 of imprisonment in the Maricopa County Jail, with 242 days’ presentence incarceration 1 credit.1 In his Petition, Petitioner names State of Arizona as Respondent and the Arizona 2 Attorney General as an Additional Respondent. Petitioner raises two grounds for relief. 3 III. Discussion 4 Before the court may grant habeas relief to a state prisoner, the prisoner must 5 exhaust remedies available in the state courts. 28 U.S.C. § 2254(b)(1); O’Sullivan v. 6 Boerckel, 526 U.S. 838, 842 (1999). 7 death penalty may exhaust his federal claims by presenting them in a procedurally proper 8 way to the Arizona Court of Appeals on direct appeal and/or in post-conviction 9 proceedings, without seeking discretionary review in the Arizona Supreme Court. 10 Crowell v. Knowles, 483 F. Supp. 2d 925, 928-30, 933 (D. Ariz. 2007) (following 1989 11 statutory amendment, Arizona Court of Appeals has jurisdiction over criminal 12 convictions involving less than a death sentence); cf. Swoopes v. Sublett, 196 F.3d 1008, 13 1010 (9th Cir. 1999) (citing pre-1989 statute). To exhaust a claim, a petitioner must 14 describe “both the operative facts and the federal legal theory on which his claim is based 15 so that the state courts [could] have a ‘fair opportunity’ to apply controlling legal 16 principles to the facts bearing upon his constitutional claim.” Castillo v. McFadden, 399 17 F.3d 993, 999 (9th Cir. 2005) (quoting Kelly v. Small, 315 F.3d 1063, 1066 (9th Cir. 18 2003), overruled in part on other grounds by Robbins v. Carey, 481 F.3d 1143 (9th Cir. 19 2007)). The failure to exhaust subjects the Petitioner to dismissal. See Gutierrez v. 20 Griggs, 695 F.2d 1195, 1197 (9th Cir. 1983). An Arizona petitioner sentenced to less than the 21 If a prisoner has a direct appeal or initial petition for post-conviction relief 22 pending in state court, the federal exhaustion requirement is not satisfied. See Sherwood 23 v. Tomkins, 716 F.2d 632, 634 (9th Cir. 1983) (pending appeal); Schnepp v. Oregon, 333 24 F.2d 288, 288 (9th Cir. 1964) (pending post-conviction proceeding); see also Henderson 25 26 27 28 1 Although Petitioner asserts in his Petition that he was not convicted of any crimes, he is incorrect. The Court takes judicial notice of the fact that Petitioner was found guilty and sentenced for the misdemeanor offenses of Threatening or Intimidating and one count of Threatening and Intimidating and Domestic Violence. See http://www. courtminutes.maricopa.gov/docs/Criminal/032015/m6742901.pdf (last visited Aug. 24, 2015). -2- 1 v. Johnson, 710 F.3d 872, 874 (9th Cir. 2013) (“Sherwood stands for the proposition that 2 a district court may not adjudicate a federal habeas petition while a petitioner’s direct 3 state appeal is pending”). The prisoner must await the outcome of the pending state-court 4 challenge before proceeding in federal court, “even where the issue to be challenged in 5 the writ of habeas corpus has been finally settled in the state courts.” Sherwood, 716 6 F.3d at 634. The pending state-court proceeding could affect the conviction or sentence 7 and, therefore, could ultimately affect or moot these proceedings. Id. 8 Petitioner has filed a notice of post-conviction relief in the Maricopa County 9 Superior Court.2 Thus, the Petition in this case is premature and must be dismissed. See 10 id.; Schnepp. The Court will dismiss this case without prejudice. 11 In addition, the Court notes that there are several other defects with the Petition. 12 First, it is a jurisdictional requirement that “the habeas petitioner be ‘in custody’ under 13 the conviction or sentence under attack at the time his petition is filed.” Maleng v. Cook, 14 490 U.S. 488, 490-91 (1989). 15 conviction when he filed his petition; he was in custody under his federal court 16 conviction and sentence. See United States v. Torres-Urias, CR 15-0549-PHX-SPL. 17 Second, § 2254(a) requires the Court to “entertain an application for a writ of habeas 18 corpus [o]n behalf of a person in custody pursuant to the judgment of a State court only 19 on the ground that he is in custody in violation of the Constitution or laws or 20 treaties of the United States.” (Emphasis added.) Absent from Petitioner’s grounds for 21 relief is any statement that he is in custody in violation of the Constitution or the laws or 22 treaties or the United States. Third, a petitioner for habeas corpus relief under 28 U.S.C. 23 § 2254 must name the state officer having custody of him as the respondent to the 24 petition. See Rule 2(a), Rules Governing Section 2254 Cases; Belgarde v. Montana, 123 25 F.3d 1210, 1212 (9th Cir. 1997). The State of Arizona is not a proper Respondent. 26 .... Petitioner was not in custody under his state court 27 28 2 See http://www.superiorcourt.maricopa.gov/docket/CriminalCourtCases/caseSea rch.asp (search “Case Number” for “CR2014-133421”) (last visited Aug. 24, 2015). -3- 1 IT IS ORDERED: 2 (1) Petitioner’s Application to Proceed In Forma Pauperis (Doc. 2) is granted. 3 (2) Petitioner’s Petition for Habeas Corpus (Doc. 1) and this case are 4 dismissed without prejudice. 5 (3) The Clerk of Court must enter judgment accordingly and close this case. 6 (4) Pursuant to Rule 11(a) of the Rules Governing Section 2254 Cases, in the 7 event Petitioner files an appeal, the Court declines to issue a certificate of appealability 8 because reasonable jurists would not find the Court’s procedural ruling debatable. See 9 Slack v. McDaniel, 529 U.S. 473, 484 (2000). 10 Dated this 28th day of August, 2015. 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -4-

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