Thomas Mills v. Stuart Sherman
Filing
9
MEMORANDUM AND ORDER DISMISSING PETITION by Judge Dean D. Pregerson. (see document for further details) (klg)
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
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?