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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1 2 3 4 5 6 7 IN THE UNITED STATES DISTRICT COURT 8 FOR THE NORTHERN DISTRICT OF CALIFORNIA 9 11 For the Northern District of California United States District Court 10 VASEGA F. TILI, Petitioner, 12 13 14 15 16 17 18 19 vs. LELAND MCEWEN, Warden, Respondent. ) ) ) ) ) ) ) ) ) ) ) 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 20 pending before the California Supreme Court. The Ninth Circuit has held unequivocally 21 that the habeas exhaustion requirement is not satisfied if there is a pending proceeding in 22 state court, even if the issue the petitioner seeks to raise in federal court has been finally 23 determined by the highest available state court. Sherwood v. Tomkins, 716 F.2d 632, 634 24 (9th Cir. 1983). This is because the pending state action might result in reversal of the 25 conviction on some other ground, mooting the federal case. Id. 26 The petition is DISMISSED without prejudice to refiling it when no further 27 proceedings are pending in the California state courts. See id. (if state court action is 28 pending, claims are not exhausted). In light of this dismissal, Petitioner’s motion to hold 1 the petition in abeyance is DENIED. Petitioner’s motion for leave to proceed in forma 2 pauperis is GRANTED. 3 Rule 11(a) of the Rules Governing Section 2254 Cases now requires a district 4 court to rule on whether a Petitioner is entitled to a certificate of appealability in the same 5 order in which the petition is decided. Petitioner has failed to make a substantial showing 6 that a reasonable jurist would find this Court's denial of his claim on procedural grounds 7 debatable or wrong. Slack v. McDaniel, 529 U.S. 473, 484 (2000). Consequently, no 8 certificate of appealability is warranted in this case. 9 11 For the Northern District of California United States District Court 10 This order terminates docket numbers 2 and 3. The Clerk shall enter judgment and close the file. IT IS SO ORDERED. 12 13 14 DATED: May 13, 2011 JEFFREY S. WHITE United States District Judge 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2

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