Rogers v. Walker

Filing 3

ORDER DISMISSING CASE; GRANTING LEAVE TO PROCEED IN FORMA PAUERIS. Signed by Judge William Alsup on 10/13/09. (Attachments: # 1 Certificate of Service)(dt, COURT STAFF) (Filed on 10/14/2009)

1 2 3 4 5 6 7 8 9 10 MICHAEL ROGERS, Petitioner, vs. JAMES WALKER, Warden, Respondent. / (Docket No. 2) No. C 09-3533 WHA (PR) ORDER OF DISMISSAL; GRANTING LEAVE TO PROCEED IN FORMA PAUPERIS IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

United States District Court

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For the Northern District of California

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INTRODUCTION Ths is a habeas case filed by a California prisoner proceeding pro se under to 28 U.S.C. 2254. He has also applied for leave to proceed in forma pauperis. ANALYSIS In his petition, petitioner states that he was convicted of robbery, burglary, and assault with a deadly weapon in San Francisco County Superior Court in 2005. The conviction was affirmed on appeal to the California Court of Appeal, and the California Supreme Court denied review. Petitioner states that at the time he filed the instant federal habeas petition, he had a petition for a writ of habeas corpus pending in the California Supreme Court. (Pet. at 5.) 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

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outcome of that challenge before his state remedies are considered exhausted. Ibid. 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. Ibid. (citations omitted). As petitioner has a habeas petition proceeding pending in the California Supreme Court, the instant petition for a writ of habeas corpus must be dismissed. CONCLUSION This habeas petition is 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 petitioner wishes to raise in federal court have been exhausted in accordance with 28 U.S.C. 2254(b)-(c). In light of petitioner's lack of funds, the application to proceed in forma pauperis (docket number 2) is GRANTED. The clerk shall close the file. IT IS SO ORDERED. Dated: October 13 , 2009.

United States District Court

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For the Northern District of California

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WILLIAM ALSUP UNITED STATES DISTRICT JUDGE

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