Tili v. McEwen

Filing 5

ORDER OF DISMISSAL; GRANTING Leave to Proceed in Forma Pauperis; DENYING Motion to Hold in Abeyance. Signed by Judge Jeffrey S. White on 5/13/2011. (Attachments: # 1 Certificate of service)(lmh, COURT STAFF) (Filed on 5/13/2011)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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For the Northern District of California

United States District Court

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VASEGA F. TILI,
Petitioner,

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vs.
LELAND MCEWEN, Warden,
Respondent.

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No. C 11-1911 JSW (PR)
ORDER OF DISMISSAL; GRANTING
LEAVE TO PROCEED IN FORMA
PAUPERIS; DENYING MOTION TO
HOLD IN ABEYANCE

(Docket Nos. 2 & 3)

Petitioner, a prisoner of the State of California proceeding pro se, has filed a
habeas corpus petition pursuant to 28 U.S.C. § 2254.
Petitioner concedes that he presently has a petition for a writ of habeas corpus

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pending before the California Supreme Court. The Ninth Circuit has held unequivocally

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that the habeas exhaustion requirement is not satisfied if there is a pending proceeding in

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state court, even if the issue the petitioner seeks to raise in federal court has been finally

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determined by the highest available state court. Sherwood v. Tomkins, 716 F.2d 632, 634

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(9th Cir. 1983). This is because the pending state action might result in reversal of the

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conviction on some other ground, mooting the federal case. Id.

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The petition is DISMISSED without prejudice to refiling it when no further

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proceedings are pending in the California state courts. See id. (if state court action is

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pending, claims are not exhausted). In light of this dismissal, Petitioner’s motion to hold

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the petition in abeyance is DENIED. Petitioner’s motion for leave to proceed in forma

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pauperis is GRANTED.

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Rule 11(a) of the Rules Governing Section 2254 Cases now requires a district

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court to rule on whether a Petitioner is entitled to a certificate of appealability in the same

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order in which the petition is decided. Petitioner has failed to make a substantial showing

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that a reasonable jurist would find this Court's denial of his claim on procedural grounds

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debatable or wrong. Slack v. McDaniel, 529 U.S. 473, 484 (2000). Consequently, no

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certificate of appealability is warranted in this case.

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For the Northern District of California

United States District Court

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This order terminates docket numbers 2 and 3. The Clerk shall enter judgment
and close the file.
IT IS SO ORDERED.

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DATED: May 13, 2011
JEFFREY S. WHITE
United States District Judge

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