Choyce v. San Francisco County Superior Court

Filing 3

ORDER OF DISMISSAL. Signed by Judge Jeffrey S. White on 4/15/09. (jjo, COURT STAFF) (Filed on 4/15/2009)

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA BENJAMIN CHOYCE, Petitioner, vs. SAN FRANCISCO SUPERIOR COURT, Respondent. ) ) ) ) ) ) ) ) ) ) ) No. C 09-1458 JSW (PR) ORDER OF DISMISSAL Petitioner, incarcerated in the San Francisco County Jail and proceeding pro se, filed this pro se habeas corpus petition pursuant to 28 U.S.C. 2254 challenging his 2008 state court conviction for disregard for public safety and being an unlicensed driver. Petitioner filed the instant habeas petition on what appears to be a state court habeas petition form and, in the space where the form requires that the Court be identified, Petitioner has written in his own handwriting, "In the Superior Court of the State of California, City and County of San Francisco," rather than this Court. It appears from the petition that he seeks to withdraw his guilty plea. In addition, this Court has determined that Petitioner has a habeas petition pending in the California Court of Appeal for the First Appellate District under Case Number A124522 with the same subject matter as the instant petition. See, California Appellate Courts Case Information at http://appellatecases.courtinfo.ca.gov. It is unclear to this Court whether Petitioner 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 inadvertently filed this petition in federal court when it was intended for the state courts, or whether Petitioner intentionally filed a petition simultaneously in both courts. This Court may entertain a petition for a writ of habeas corpus "in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. 2254(a); Rose v. Hodges, 423 U.S. 19, 21 (1975). A district court shall "award the writ or issue an order directing the respondent to show cause why the writ should not be granted, unless it appears from the application that the applicant or person detained is not entitled thereto." 28 U.S.C. 2243. Summary dismissal is appropriate only where the allegations in the petition are vague, conclusory, palpably incredible, or patently frivolous or false. See Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Cir. 1990) (citing Blackledge v. Allison, 431 U.S. 63, 75-76 (1977)). The exhaustion requirement applicable to federal habeas petitions is not satisfied if there is a pending post-conviction proceeding in state court. See 28 U.S.C. 2254(b)-(c); Sherwood v. Tomkins, 716 F.2d 632, 634 (9th Cir. 1983). If a post-conviction challenge to a criminal conviction is pending in state court, a potential federal habeas petitioner must await the outcome of that challenge before his state remedies are considered exhausted. See id. This rule applies irrespective of whether the issue raised in the pending state petition is included in the federal petition, for the reason that a pending state court challenge may result in a reversal of the petitioner's conviction, thereby mooting the federal petition. See id. (citations omitted). As Petitioner has a petition pending in the California Court of Appeal, the instant petition for a writ of habeas corpus is hereby DISMISSED without prejudice to Petitioner's refiling his claims after all state court post-conviction challenges to petitioner's conviction have been completed and all claims exhausted in accordance with 28 U.S.C. 2254(b)-(c). See Rose v. Lundy, 455 U.S. 509, 522 (1982) (holding every claim raised in federal habeas petition must be exhausted). 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 The Clerk shall close the file and enter judgment in accordance with this order. IT IS SO ORDERED. DATED: April 15, 2009 JEFFREY S. WHITE United States District Judge 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Benjamin C. Choyce #2380465 San Francisco County Jail 850 Bryant Street San Francisco, CA 94103 Dated: April 15, 2009 v. BENJAMIN CHOYCE, Plaintiff, UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA Case Number: CV09-01458 JSW CERTIFICATE OF SERVICE SAN FRANCISCO SUPERIOR COURT, et al, Defendant. / I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District Court, Northern District of California. That on April 15, 2009, I SERVED a true and correct copy(ies) of the attached, by placing said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery receptacle located in the Clerk's office. Richard W. Wieking, Clerk By: Jennifer Ottolini, Deputy Clerk

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