Thomas Mills v. Stuart Sherman

Filing 9

MEMORANDUM AND ORDER DISMISSING PETITION by Judge Dean D. Pregerson. (see document for further details) (klg)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 WESTERN DIVISION 11 12 THOMAS MILLS, 13 14 15 16 Petitioner, v. STEWART SHERMAN, Warden, Respondent. ) ) ) ) ) ) ) ) ) ) Case No. CV 16-9681-DDP(AJW) MEMORANDUM AND ORDER DISMISSING PETITION 17 18 On July 12, 2016, petitioner was convicted of two counts of second degree robbery. [Petition at 19 2]. Petitioner appealed to the California Court of Appeal, and his appeal is currently pending. [ Petition 20 at 5-6]. Petitioner has filed a petition for a writ of habeas corpus in this Court, challenging his 2016 21 conviction. For the following reasons, the petition is subject to summary dismissal. See Rule 4 of the 22 Rules Governing Section 2254 Cases. 23 24 First, it is clear from the face of the petition that petitioner has not exhausted his state court remedies. This court cannot grant habeas corpus relief until he does so. See 28 U.S.C. § 2254(b). 25 Second, petitioner’s conviction is not yet final. A favorable decision by the state court could moot 26 any federal claim. Because his petition is premature, the petition is dismissed without prejudice to its 27 refiling after petitioner’s conviction has become final and his federal claims have been properly presented 28 to the California Supreme Court. See Deere v. Superior Court of Cal., 330 Fed. Appx. 693, 694 (9th Cir. 1 2009); Sherwood v. Tomkins, 716 F.2d 632, 634 (9th Cir. 1983).1 It is so ordered. 2 3 4 Dated: September 12, 2017 5 Dean D. Pregerson United States District Judge 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 Petitioner is cautioned that a one year limitation period applies to federal habeas petitions. See 28 U.S.C. § 2244(d). Generally, a state conviction is final 90 days after the petitioner’s petition for review is denied. See Bowen v. Roe, 188 F.3d 1157, 1158-1159 (9th Cir. 1999). Petitioner would have one year from that date within which to file a federal petition. The one-year period would be extended if petitioner has a properly filed state application for relief pending or is entitled to equitable tolling. Nothing in this order should be construed as an opinion as to the timeliness of any future petition. 2 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 WESTERN DIVISION 11 12 THOMAS MILLS, 13 Petitioner, 14 15 v. STEWART SHERMAN, Warden, 16 Respondent. ) ) ) ) ) ) ) ) ) ) Case No. CV 16-9681-DDP(AJW) JUDGMENT 17 It is hereby adjudged that the petition for a writ of habeas corpus is dismissed without prejudice. 18 19 20 Dated: 21 22 23 24 25 26 27 28 Dean D. Pregerson United States District Judge

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