Parks v. Arizona, State of et al

Filing 6

ORDER, Petitioner's Petition for Habeas Corpus 1 and this case are dismissed without prejudice; Petitioner's Motion in Request, for Spe[ci]al Action Rule-7 4 is denied as moot; the Clerk must enter judgment accordingly and close this case; 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 G Murray Snow on 4/3/12.(REW)

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WO

MDR

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Edward Faye Parks,
Petitioner,

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vs.

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Tom Shehan, et al.,
Respondents.

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No. CV 12-8040-PCT-GMS (DKD)
ORDER

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On March 5, 2012, Petitioner Edward Faye Parks, who is confined in the Mohave

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County Jail in Kingman, Arizona, filed a pro se Petition for Writ of Habeas Corpus pursuant

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to 28 U.S.C. § 2254 (Doc. 1). In a March 8, 2012 Order, the Court noted that Petitioner had

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not paid the filing fee or filed an Application to Proceed In Forma Pauperis. The Court gave

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Petitioner 30 days to either pay the filing fee or file an Application to Proceed In Forma

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Pauperis.

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On March 21, 2012, Petitioner filed a “Motion in Request, for Spe[ci]al Action

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Rule-7” (Doc. 4). On March 26, 2012, he paid the filing fee. The Court will dismiss this

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case and will deny the Motion in Request.

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I.

Petition

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Petitioner alleges that he was convicted in Mohave County Superior Court, case CR-

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2011-0853, of disorderly conduct with a weapon, and two counts of aggravate assault, and

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that he was sentenced to prison terms of one year, 2 years, and 3.5 years, respectively. In his

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Petition, Petitioner names Tom Shehan as Respondent and the State of Arizona and Arizona

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Attorney General as Additional Respondents.

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Petitioner raises four grounds for relief in his Petition. He also alleges that he has

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filed an appeal and/or petition for special action with the Arizona Court of Appeals, as well

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as two petitions with the Mohave County Superior Court.

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II.

Discussion

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First, it is not clear that relief is available pursuant to 28 U.S.C. § 2254, which

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requires that a person be in custody pursuant to a judgment of a State court. Petitioner states

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in his Petition that his sentence was not imposed until March 14, 2012, nine days after he

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filed this Petition.1

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Second, before the court may grant habeas relief to a state prisoner, the prisoner must

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

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Boerckel, 526 U.S. 838, 842 (1999). “In other words, the state prisoner must give the state

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courts an opportunity to act on his claims before he presents those claims to a federal court

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

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

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If a prisoner has post-conviction proceedings pending in state court, the federal

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exhaustion requirement is not satisfied. See Sherwood v. Tomkins, 716 F.2d 632, 634 (9th

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Cir. 1983) (pending appeal); Schnepp v. Oregon, 333 F.2d 288, 288 (9th Cir. 1964) (pending

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post-conviction proceeding). The prisoner must await the outcome of the pending state-court

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challenge before proceeding in federal court, “even where the issue to be challenged in the

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writ of habeas corpus has been finally settled in the state courts.” Sherwood, 716 F.3d at

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634. The pending state-court proceeding could affect the conviction or sentence and,

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therefore, could ultimately affect or moot these proceedings. Id.

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In addition, attached to Petitioner’s March 21st Motion in Request are two pages from
a probation officer that indicate that Petitioner’s sentencing was set for March 14th and
Petitioner’s own statement that “sentencing was postponed two weeks - no date yet.”
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In light of Petitioner’s pending appeal and/or special action, and his pending motions

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in the superior court, the Petition is premature and must be dismissed. See id.; Schnepp. The

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Court will dismiss the case without prejudice.

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III.

Motion in Request

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In his Motion in Request, Petitioner appears to be asking this Court to contact the

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Arizona Court of Appeals and “request, by–fax–or mail–this Rule -7- Spe[ci]al Action, so

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[Petitioner] can fill it out, and send [it] back [to the] Appeal[]s Court.” Because the Court

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is dismissing this habeas action, the Court will deny as moot the Motion in Request.

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

without prejudice.

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(2)

Petitioner’s “Motion in Request, for Spe[ci]al Action Rule-7” (Doc. 4) is

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denied as moot.

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(3)

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

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(4)

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

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

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

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McDaniel, 529 U.S. 473, 484 (2000).

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DATED this 3rd day of April, 2012.

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