Orr v. Yates

Filing 7

ORDER DISMISSING CASE. GrANTING LEAVE TO PROCEED IN FORMA PAUPERIS. Signed by Judge William Alsup on 8/29/11. (Attachments: # 1 Certificate of Service)(dt, COURT STAFF) (Filed on 9/1/2011)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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TALYON JEROME ORR,

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For the Northern District of California

United States District Court

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No. C 11-3596 WHA (PR)

Petitioner,

ORDER OF DISMISSAL;
GRANTING LEAVE TO PROCEED
IN FORMA PAUPERIS

vs.
JAMES A. YATES,
Respondent.

(Docket No. 2)
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Petitioner filed this pro se petition for a writ of habeas corpus under 28 U.S.C. 2254
challenging a state court conviction.

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Petitioner states that he presently has a “petition, appeal or other post-conviction

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proceeding” pending before the California Supreme Court (Pet. 5). The Ninth Circuit has held

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

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

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

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634 (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. Ibid.

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

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are pending in the California state courts. The application for leave to proceed in forma

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pauperis (docket number 2) is GRANTED. The motion to strike unexhausted claims from the

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petition (docket number 4) is DENIED.

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Rule 11(a) of the Rules Governing Section 2254 Cases now requires a district court to
rule on whether a petitioner is entitled to a certificate of appealability in the same order in

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which the petition is dismissed. Petitioner has failed to make a substantial showing that

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reasonable jurists would find it debatable whether the district court was correct in its procedural

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ruling. Slack v. McDaniel, 529 U.S. 473, 484 (2000). Consequently, no certificate of

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appealability is warranted in this case.

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IT IS SO ORDERED.

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Dated: August

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, 2011.

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WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE

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For the Northern District of California

United States District Court

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G:\PRO-SE\WHA\HC.11\ORR3596.DSM.wpd

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