Saldana v. Grounds

Filing 2

ORDER OF DISMISSAL. Signed by Judge Thelton E. Henderson on 12/10/2012. (Attachments: # 1 Certificate/Proof of Service)(tmi, COURT STAFF) (Filed on 12/11/2012)

1
2
3
4
IN THE UNITED STATES DISTRICT COURT
5
FOR THE NORTHERN DISTRICT OF CALIFORNIA
6
7
CARLOS ARMANDO SALDANA,

No. C-12-6026 TEH (PR)

8
Petitioner,
9
ORDER TO DISMISSAL

v.
United States District Court
For the Northern District of California

10
RANDY GROUNDS, Warden,
11
Respondent.
12
/
13
14
Petitioner, a state prisoner incarcerated at California
15
Training Facility in Soledad, California, has filed a pro se
16
Petition for a Writ of Habeas Corpus under 28 U.S.C. § 2254
17
18
19
20
21
22
23
24
25
26
27
28

challenging a judgment of conviction from Contra Costa County
Superior Court.

Doc. #1.

He has paid the $5.00 filing fee.
I

In 2009, Petitioner was convicted by jury in Contra Costa
County Superior Court of forcible rape and other sexual crimes.

In

2010, the California Court of Appeal affirmed the judgment and the
California Supreme Court denied review.

The instant federal

petition for a writ of habeas corpus followed.

Doc. #1.

II
This Court may entertain a petition for a writ of habeas
corpus “in behalf of a person in custody pursuant to the judgment of

1

a State court only on the ground that he is in custody in violation

2

of the Constitution or laws or treaties of the United States.”

3

U.S.C. § 2254(a).

4

directing the respondent to show cause why the writ should not be

5

granted, unless it appears from the application that the applicant

6

or person detained is not entitled thereto.”

7

28

It shall “award the writ or issue an order

Id. § 2243.

Petitioner seeks federal habeas corpus relief on two

8

claims: (1) ineffective assistance of appellate counsel and

9

(2) ineffective assistance of trial counsel.

Doc. #1 at 6.

United States District Court
For the Northern District of California

10

However, Petitioner indicates that his state habeas petition for a

11

writ of habeas corpus, in which he first asserts his claim of

12

ineffective assistance of appellate counsel, is still pending in the

13

Contra Costa Superior Court.

Doc. #1 at 3, 4.

14

Prisoners in state custody who wish to challenge

15

collaterally in federal habeas proceedings either the fact or length

16

of their confinement are first required to exhaust state judicial

17

remedies, either on direct appeal or through collateral proceedings,

18

by presenting the highest state court available with a fair

19

opportunity to rule on the merits of each and every claim they seek

20

to raise in federal court.

21

Lundy, 455 U.S. 509, 515-16 (1982); Duckworth v. Serrano, 454 U.S.

22

1, 3 (1981).

23

exhausted his state remedies is when the federal habeas petition is

24

filed.

25

See 28 U.S.C. § 2254(b), (c); Rose v.

The appropriate time to assess whether a prisoner has

Brown v. Maass, 11 F3d 914, 915 (9th Cir. 1993).
The exhaustion requirement is not satisfied if there is a

26

pending post-conviction proceeding in state court, even if the issue

27

the petitioner seeks to raise in federal court has been finally

28

2

1

determined by the highest available state court in another context.

2

Sherwood v. Tomkins, 716 F.2d 632, 634 (9th Cir. 1983).

3

because the pending state action might result in reversal of the

4

conviction on some other ground mooting the federal case.

5

also Schnepp v. State of Oregon, 333 F.2d 288, 288 (9th Cir. 1964)

6

(affirming dismissal of petition because there were post-conviction

7

proceedings pending in state court); Alls v. Curry, 2008 WL 4183430,

8

*1-2 (N.D. Cal.) (dismissing petition without prejudice due to

9

pending state habeas petition).

United States District Court
For the Northern District of California

10

This is

Id.; see

Therefore, this petition must be dismissed without

11

prejudice to refiling when no further proceedings are pending in the

12

California state courts.

13
14

IT IS SO ORDERED.

15
16

DATED

12/10/2012
THELTON E. HENDERSON
United States District Judge

17
18
19
20
21
22
23
24
25
26
27
28

G:\PRO-SE\TEH\HC.12\Saldana 12-6026 HC-Dis.wpd

3