Relmon Henry Davis III v. C S McEwen

Filing 7

ORDER SUMMARILY DISMISSING PETITION FOR WRIT OF HABEAS CORPUS WITHOUT PREJUDICE by Judge David O. Carter: IT IS ORDERED THAT this action be SUMMARILY DISMISSED WITHOUT PREJUDICE pursuant to Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts. LET JUDGMENT BE ENTERED ACCORDINGLY. (jm)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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RELMON HENRY DAVIS III,
Petitioner,

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v.

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L.S. MCEWEN, Warden,
Respondent.

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Case No. SA CV 11-1350 DOC (JCG)
ORDER SUMMARILY DISMISSING
PETITION FOR WRIT OF HABEAS
CORPUS WITHOUT PREJUDICE

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I.

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INTRODUCTION AND SUMMARY

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On September 6, 2011, petitioner Relmon Henry Davis III (“Petitioner”), a

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California prisoner proceeding pro se, filed a Petition for Writ of Habeas Corpus

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(“Petition”) challenging his 2008 state court conviction. (Pet. at 2.)1 However,

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because Petitioner currently has a pending state habeas petition, which could result in

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the reversal of Petitioner’s conviction or otherwise moot the federal question, the

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Petition must be dismissed without prejudice.

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The Court sequentially numbers the pages of the Petition, i.e., pages 1-86.

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II.

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STATE PROCEEDINGS
On October 29, 2008, Petitioner was convicted for assault with a deadly weapon

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and forcible oral copulation. (Pet. at 2); see also People v. Davis, 2009 WL 4981277,

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at *1 (Cal. App. Dec. 23, 2009). On December 23, 2009, the California Court of

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Appeal affirmed the conviction. (Id. at 2-3.) Petitioner then filed a Petition for

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Review in the California Supreme Court, which was denied on March 10, 2010. (Id. at

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3.)

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Petitioner also filed several habeas petitions in the California courts, including

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two petitions in the California Supreme Court. (Pet. at 3-6, 85-86.) One of those

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petitions was filed on July 27, 2011, and remains pending. (Id. at 85-86.) The Court

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further takes judicial notice of information on the California Supreme Court’s website,

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which indicates that one of Petitioner’s habeas petitions to the California Supreme

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Court is still pending. See www.courts.ca.gov/supremecourt.htm, Case Information,

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Case No. S195179.

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III.

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DISCUSSION

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Before a state prisoner challenges his state conviction in federal court via a

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federal habeas petition, he must first exhaust his federal grounds for relief in state

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court. 28 U.S.C. § 2254(b); see also Duncan v. Henry, 513 U.S. 364, 365 (1995) (per

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curiam). To satisfy the exhaustion requirement, a petitioner must “fairly present” his

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federal claims to the state courts, “to give the State the opportunity to pass upon and

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correct alleged violations of its prisoners’ federal rights.” Duncan, 513 U.S. at 365

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(internal quotation marks and citation omitted). “To provide the State with the

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necessary ‘opportunity,’ the prisoner must ‘fairly present’ his claim in each appropriate

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state court (including a state supreme court with powers of discretionary review),

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thereby alerting that court to the federal nature of the claim.” Baldwin v. Reese, 541

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U.S. 27, 29 (2004) (citation omitted).
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Accordingly, when a federal habeas claim is still pending before a state court, a

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federal habeas petitioner has not met the exhaustion requirement because he has not

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given the state court the first opportunity to address the federal claim. See Duncan,

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513 U.S. at 365. Furthermore, “[i]f the prisoner’s claim is meritorious, and if the state

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remedy is prompt and complete, there is no need to bring post-conviction proceedings

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in federal courts.” Sherwood v. Tomkins, 716 F.2d 632, 633 (9th Cir. 1983) (internal

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quotation marks and citation omitted).

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Thus, “[w]hen ... an appeal of a state criminal conviction is pending, a

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would-be habeas corpus petitioner must await the outcome of his appeal before his

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state remedies are exhausted, even where the issue to be challenged ... has been finally

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settled in the state courts.” Sherwood, 716 F.2d at 634; see also Schnepp v. Oregon,

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333 F.2d 288, 288 (9th Cir. 1964) (state remedies not exhausted where a state post-

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conviction proceeding is pending). As the Ninth Circuit cogently explained, “even if

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the federal constitutional question raised by the habeas corpus petitioner cannot be

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resolved in a pending state appeal, that appeal may result in the reversal of the

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petitioner’s conviction on some other ground, thereby mooting the federal question.”

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Sherwood, 716 F.2d at 634 (emphasis added) (citing Davidson v. Klinger, 411 F.2d

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746, 747 (9th Cir. 1969)).

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Here, Petitioner acknowledges that he is currently awaiting adjudication on his

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habeas petition to the California Supreme Court. (Pet. at 85-86.) Since Petitioner

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retains a pending state action which may moot or otherwise affect his alleged

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constitutional claims before this Court, he must await the outcome of that action before

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presenting his claims in federal court. The California Supreme Court must be afforded

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the opportunity to remedy any alleged constitutional violations in the first instance.

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Sherwood, 716 F.2d at 634.

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Petitioner is advised that this dismissal is without prejudice. If Petitioner still

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desires federal habeas relief following the California Supreme Court’s adjudication of

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his state habeas petition, he may file a habeas petition with this Court. Petitioner is
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further advised that there is a one-year statute of limitations on habeas claims by a

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petitioner in state custody, which ordinarily begins to run at the end of the period in

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which that petitioner can seek direct review. 28 U.S.C. § 2244(d)(1); see also Bowen

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v. Roe, 188 F.3d 1157, 1159 (9th Cir. 1999) (for purposes of determining when

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judgment is final under § 2244(d)(1), period of direct review includes “the ninety-day

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period within which [the petitioner] could have filed a petition for a writ of certiorari

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from the United States Supreme Court”). The limitations period is tolled while a

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“properly filed” application for state post-conviction or other collateral review with

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respect to the pertinent judgment or claim is pending, 28 U.S.C. § 2244(d)(2), but the

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limitations period is not tolled under section 2244(d) while a petition is pending in

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federal court. Duncan v. Walker, 533 U.S. 167, 181-82 (2001).

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IV.

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CERTIFICATE OF APPEALABILITY
For the reasons stated above, the Court finds that Petitioner has not shown that

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“jurists of reason would find it debatable whether”: (1) “the petition states a valid

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claim of the denial of a constitutional right”; and (2) “the district court was correct in

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its procedural ruling.” See Slack v. McDaniel, 529 U.S. 473, 484 (2000). Thus, the

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Court declines to issue a certificate of appealability.

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V.

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ORDER

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For the foregoing reasons, IT IS ORDERED THAT this action be

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SUMMARILY DISMISSED WITHOUT PREJUDICE pursuant to Rule 4 of the

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Rules Governing Section 2254 Cases in the United States District Courts.

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LET JUDGMENT BE ENTERED ACCORDINGLY.

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DATED: _09/27/11

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________________________________________

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HON. DAVID O. CARTER
UNITED STATES DISTRICT JUDGE

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