Fordjour v. Ayers et al

Filing 4

ORDER OF DISMISSAL; GRANTING LEAVE TO PROCEED IN FORMA PAUPERIS. Signed by Judge Maxine M. Chesney on June 20, 2007. (mmcsec, COURT STAFF) (Filed on 6/20/2007)

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Fordjour v. Ayers et al Doc. 4 Case 3:07-cv-03044-MMC Document 4 Filed 06/20/2007 Page 1 of 3 1 2 3 4 5 6 7 8 9 10 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA ) ) ) Petitioner, ) ) v. ) ) ROBERT L. AYERS, et al., ) ) Respondents. ___________________________ ) CHARLES FORDJOUR, No. C 07-3044 MMC (PR) ORDER OF DISMISSAL; GRANTING LEAVE TO PROCEED IN FORMA PAUPERIS (Docket No. 2) United States District Court 11 12 13 14 15 For the Northern District of California On June 12, 2007, petitioner, a California prisoner proceeding pro se, filed the above- 16 titled petition for a writ of habeas corpus pursuant to 28 U.S.C. 2254, challenging both his 17 2004 state court conviction and his 2007 revocation of parole. He has applied for leave to 18 proceed in forma pauperis. 19 In March 2004, in San Mateo County Superior Court, petitioner was convicted of 20 fraud under California Penal Code 532(a), and sentenced to a term of three years in state 21 prison. Following his release on parole, he was found by the California Board of Prison 22 Hearings ("BPH"), on February 21, 2007, to be in violation thereof and was returned to 23 prison for a term of one year and placed on parole for one additional year. Petitioner states 24 he appealed his 2004 conviction and sentence to the California Court of Appeal, which 25 reversed in part and affirmed in part, and that a subsequent petition for direct review to the 26 California Supreme Court was denied. (See Pet. at 3; see also at 4-5.) He further states that 27 he filed an "appeal/post-conviction relief" in the Santa Clara County Superior Court in 2004, 28 which was denied. (See id. at 4.) Finally, he states that at the time he filed the instant federal Case 3:07-cv-03044-MMC Document 4 Filed 06/20/2007 Page 2 of 3 1 habeas petition, he had a petition, appeal, or other post-conviction proceeding pending in 2 both the Court of Appeal and the Santa Clara County Superior Court. (See id. at 5.) 3 This Court may entertain a petition for a writ of habeas corpus "in behalf of a person 4 in custody pursuant to the judgment of a State court only on the ground that he is in custody 5 in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. 2254(a); 6 Rose v. Hodges, 423 U.S. 19, 21 (1975). A district court shall "award the writ or issue an 7 order directing the respondent to show cause why the writ should not be granted, unless it 8 appears from the application that the applicant or person detained is not entitled thereto." 9 28 U.S.C. 2243. Summary dismissal is appropriate only where the allegations in the 10 petition are vague, conclusory, palpably incredible, or patently frivolous or false. See 11 Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Cir. 1990) (citing Blackledge v. Allison, 431 12 U.S. 63, 75-76 (1977)). 13 The exhaustion requirement applicable to federal habeas petitions is not satisfied if 14 there is a pending post-conviction proceeding in state court. See 28 U.S.C. 2254(b)-(c); 15 Sherwood v. Tomkins, 716 F.2d 632, 634 (9th Cir. 1983). If a post-conviction challenge to a 16 criminal conviction is pending in state court, a potential federal habeas petitioner must await 17 the outcome of that challenge before his state remedies are considered exhausted. See id. 18 This rule applies irrespective of whether the issue raised in the pending state petition is 19 included in the federal petition, for the reason that a pending state court challenge may result 20 in a reversal of the petitioner's conviction, thereby mooting the federal petition. See id. 21 (citations omitted). 22 As petitioner has a petition, appeal or other post-conviction proceeding pending in the 23 California Court of Appeal and Santa Clara County Superior Court, the instant petition for a 24 writ of habeas corpus is hereby DISMISSED, without prejudice to petitioner's refiling his 25 claims after all state court post-conviction challenges to petitioner's conviction have been 26 completed and all claims petitioner wishes to raise in federal court have been exhausted in 27 accordance with 28 U.S.C. 2254(b)-(c). See Rose v. Lundy, 455 U.S. 509, 522 (1982) 28 (holding every claim raised in federal habeas petition must be exhausted). 2 Case 3:07-cv-03044-MMC Document 4 Filed 06/20/2007 Page 3 of 3 1 In light of petitioner's lack of funds, the application to proceed in forma pauperis is 2 hereby GRANTED. 3 4 5 This order terminates Docket No. 2. The Clerk shall close the file. IT IS SO ORDERED. 6 DATED: June 20, 2007 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ____________________________ MAXINE M. CHESNEY United States District Judge 3

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