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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1 WO MDR 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Edward Faye Parks, Petitioner, 10 11 vs. 12 Tom Shehan, et al., Respondents. 13 ) ) ) ) ) ) ) ) ) ) No. CV 12-8040-PCT-GMS (DKD) ORDER 14 15 On March 5, 2012, Petitioner Edward Faye Parks, who is confined in the Mohave 16 County Jail in Kingman, Arizona, filed a pro se Petition for Writ of Habeas Corpus pursuant 17 to 28 U.S.C. § 2254 (Doc. 1). In a March 8, 2012 Order, the Court noted that Petitioner had 18 not paid the filing fee or filed an Application to Proceed In Forma Pauperis. The Court gave 19 Petitioner 30 days to either pay the filing fee or file an Application to Proceed In Forma 20 Pauperis. 21 On March 21, 2012, Petitioner filed a “Motion in Request, for Spe[ci]al Action 22 Rule-7” (Doc. 4). On March 26, 2012, he paid the filing fee. The Court will dismiss this 23 case and will deny the Motion in Request. 24 I. Petition 25 Petitioner alleges that he was convicted in Mohave County Superior Court, case CR- 26 2011-0853, of disorderly conduct with a weapon, and two counts of aggravate assault, and 27 that he was sentenced to prison terms of one year, 2 years, and 3.5 years, respectively. In his 28 1 Petition, Petitioner names Tom Shehan as Respondent and the State of Arizona and Arizona 2 Attorney General as Additional Respondents. 3 Petitioner raises four grounds for relief in his Petition. He also alleges that he has 4 filed an appeal and/or petition for special action with the Arizona Court of Appeals, as well 5 as two petitions with the Mohave County Superior Court. 6 II. Discussion 7 First, it is not clear that relief is available pursuant to 28 U.S.C. § 2254, which 8 requires that a person be in custody pursuant to a judgment of a State court. Petitioner states 9 in his Petition that his sentence was not imposed until March 14, 2012, nine days after he 10 filed this Petition.1 11 Second, before the court may grant habeas relief to a state prisoner, the prisoner must 12 exhaust remedies available in the state courts. 28 U.S.C. § 2254(b)(1); O’Sullivan v. 13 Boerckel, 526 U.S. 838, 842 (1999). “In other words, the state prisoner must give the state 14 courts an opportunity to act on his claims before he presents those claims to a federal court 15 in a habeas petition.” O’Sullivan, 526 U.S. at 842. The failure to exhaust subjects the 16 Petition to dismissal. See Gutierrez v. Griggs, 695 F.2d 1195, 1197 (9th Cir. 1983). 17 If a prisoner has post-conviction proceedings pending in state court, the federal 18 exhaustion requirement is not satisfied. See Sherwood v. Tomkins, 716 F.2d 632, 634 (9th 19 Cir. 1983) (pending appeal); Schnepp v. Oregon, 333 F.2d 288, 288 (9th Cir. 1964) (pending 20 post-conviction proceeding). The prisoner must await the outcome of the pending state-court 21 challenge before proceeding in federal court, “even where the issue to be challenged in the 22 writ of habeas corpus has been finally settled in the state courts.” Sherwood, 716 F.3d at 23 634. The pending state-court proceeding could affect the conviction or sentence and, 24 therefore, could ultimately affect or moot these proceedings. Id. 25 26 1 27 28 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.” -2- 1 In light of Petitioner’s pending appeal and/or special action, and his pending motions 2 in the superior court, the Petition is premature and must be dismissed. See id.; Schnepp. The 3 Court will dismiss the case without prejudice. 4 III. Motion in Request 5 In his Motion in Request, Petitioner appears to be asking this Court to contact the 6 Arizona Court of Appeals and “request, by–fax–or mail–this Rule -7- Spe[ci]al Action, so 7 [Petitioner] can fill it out, and send [it] back [to the] Appeal[]s Court.” Because the Court 8 is dismissing this habeas action, the Court will deny as moot the Motion in Request. 9 10 11 IT IS ORDERED: (1) Petitioner’s Petition for Habeas Corpus (Doc. 1) and this case are dismissed without prejudice. 12 (2) Petitioner’s “Motion in Request, for Spe[ci]al Action Rule-7” (Doc. 4) is 13 denied as moot. 14 (3) The Clerk of Court must enter judgment accordingly and close this case. 15 (4) Pursuant to Rule 11(a) of the Rules Governing Section 2254 Cases, in the event 16 Petitioner files an appeal, the Court declines to issue a certificate of appealability because 17 reasonable jurists would not find the Court’s procedural ruling debatable. See Slack v. 18 McDaniel, 529 U.S. 473, 484 (2000). 19 DATED this 3rd day of April, 2012. 20 21 22 23 24 25 26 27 28 -3-

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