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)

Download PDF
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

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?