Mortensen v. Radcliffe et al

Filing 10

ORDER signed by Magistrate Judge Deborah Barnes on 08/02/17 ordering the petition is dismissed without prejudice for failure to exhaust. The clerk of the court is directed to close this case. CASE CLOSED. (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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STEVEN LEE MORTENSEN,

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No. 2:16-cv-1692 DB P

Petitioner,
v.

ORDER

ROBERT RADCLIFFE,

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Respondent.

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Petitioner is a state prisoner proceeding pro se with a petition for a writ of habeas corpus

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under 28 U.S.C. § 2254. Petitioner has consented to the jurisdiction of a magistrate judge.

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Before the court is petitioner’s motion to proceed in forma pauperis and petition for initial

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screening.

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Examination of the in forma pauperis application reveals that petitioner is unable to afford

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the costs of suit. Accordingly, the application to proceed in forma pauperis will be granted. See

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28 U.S.C. § 1915(a).

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A review of petitioner’s petition shows that he had not exhausted his state remedies prior

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to filing his petition. This court may only consider claims that have been exhausted in state court.

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See 28 U.S.C. § 2254 (b)(1). In order to satisfy the federal exhaustion requirement, a state

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prisoner must fairly present all of his federal claims to the state's highest court before he presents

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them to the federal court. Duncan v. Henry, 513 U.S. 364, 365 (1995) (per curiam); Picard v.
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Connor, 404 U.S. 270, 276 (1971); Middleton v. Cupp, 768 F.2d 1083, 1086 (9th Cir. 1985). In

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his petition, petitioner states that he has not yet received a result from the California Supreme

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Court because he is “still in trial.” (Pet. at p. 5 (ECF No. 1 at 7).) Petitioner had not, therefore,

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exhausted his claims before bringing the present petition.

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The court further notes that petitioner states he is challenging his state court case no.

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CM044227. On September 14, 2016, petitioner filed a second petition for writ of habeas corpus

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with this court as case no. 2:16-cv-2187 MCE AC. In that petition, petitioner also asserts that he

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is challenging state court case no. CM044227. In the petition in case no. 2:16-cv-2187, petitioner

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further states that he was convicted on July 18, 2016. If petitioner raises different claims in the

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present petition than those raised in case no. 2:16-cv-2187, he may seek to amend his petition in

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that more recent case to assert those claims.

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Accordingly, IT IS HEREBY ORDERED that the petition is dismissed without prejudice

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for failure to exhaust. The Clerk of the Court is directed to close this case.

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Dated: August 2, 2017

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DLB:9
DLB1/prisoner-habeas/mort1692.scrn

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