Starritt v. Humboldt Correctional Facility

Filing 16

ORDER by Judge William Alsup granting 13 Motion to Dismiss. (Attachments: # 1 Certificate/Proof of Service)(dl, COURT STAFF) (Filed on 2/13/2017)

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1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE NORTHERN DISTRICT OF CALIFORNIA 8 9 WAYMOND STARRITT, Petitioner, For the Northern District of California United States District Court 10 11 12 No. C 16-1380 WHA (PR) ORDER GRANTING MOTION TO DISMISS v. HUMBOLDT COUNTY CORRECTIONAL FACILITY, (Dkt. No. 13) 13 Respondent. 14 / 15 INTRODUCTION 16 This is a habeas case brought pro se by a state prisoner under 28 U.S.C. 2254 17 challenging his state court conviction. Respondent has filed a motion to dismiss the petition for 18 failure to exhaust state court remedies. Petitioner filed an opposition, and respondent filed a 19 reply brief. The motion is granted and the case is dismissed without prejudice. 20 ANALYSIS 21 It is clear from the face of the petition that the petition is not exhausted. In order 22 Respondent argues that the instant petition is not exhausted. An application for a federal writ of 23 habeas corpus filed by a prisoner who is in state custody pursuant to a judgment of a state court 24 may not be granted unless the prisoner has first exhausted state judicial remedies, either by way 25 of a direct appeal or in collateral proceedings, by presenting the highest state court available 26 with a fair opportunity to rule on the merits of each and every issue he or she seeks to raise in 27 federal court. See 28 U.S.C. § 2254(b),(c); Granberry v. Greer, 481 U.S. 129, 133-34 (1987). 28 Petitioner states in his petition that he did not appeal or seek other form of collateral review of 1 his conviction in the state courts before filing the instant federal petition (Pet. 4-5). Petitioner 2 admits as much in his opposition, stating that he is currently pursuing a state court appeal (Opp. 3 1). The exhaustion requirement is not satisfied if an appeal of a state conviction is pending in 4 the state appellate court. Sherwood v. Tomkins, 716 F.2d 632, 634 (9th Cir. 1983); see also 5 Gatlin v. Madding, 189 F.3d 882, 889 (9th Cir. 1999) (appropriate time to assess exhaustion is 6 when federal petition filed, not when it is reviewed in federal court; if petitioner exhausts after 7 filing, he can raise claims in subsequent petition). Petitioner states that the reason he did not 8 seek appellate review in the state courts before filing his federal petition is that he is seeking 9 “swifter justice” (ibid.; Pet. 5). Petitioner may not circumvent the requirement that he exhaust his state court remedies prior to seeking federal habeas review simply because he wants to 11 For the Northern District of California United States District Court 10 expedite relief. As petitioner has not exhausted any of his claims, the petition must be 12 dismissed. See Coleman v. Thompson, 501 U.S. 722, 731 (1991) (wholly unexhausted petition 13 must be dismissed). 14 Petitioner alternatively asks for a stay of this petition. “[A] district court has discretion 15 to stay and hold in abeyance fully unexhausted petitions under the circumstances set forth in 16 Rhines.” Mena v. Long, 813 F.3d 907, 912 (9th Cir. 2016). To qualify for a stay under Rhines 17 v. Weber, 544 U.S. 269, 277-78 (2005), the petition must be potentially meritorious and there 18 must be good cause for failure to exhaust his claims before filing his federal petition. Wanting 19 “swifter justice” is not good cause for failing to exhaust prior to filing in federal court. 20 Accordingly, a stay is not warranted. 21 22 CONCLUSION For the foregoing reasons, respondent’s motion to dismiss (dkt. 6) is GRANTED and the 23 petition is DISMISSED without prejudice to filing a federal habeas petition after the California 24 Supreme Court has ruled on petitioner’s claims. 25 Rule 11(a) of the Rules Governing Section 2254 Cases now requires a district court to 26 rule on whether a petitioner is entitled to a certificate of appealability in the same order in 27 which the petition is denied. Petitioner has failed to make a substantial showing that a 28 2 1 reasonable jurist would find the dismissal of his petition debatable or wrong. Slack v. 2 McDaniel, 529 U.S. 473, 484 (2000). Consequently, no certificate of appealability is warranted 3 in this case. 4 The clerk shall enter judgment and close the file. 5 IT IS SO ORDERED. 6 7 8 Dated: February 13 , 2017. WILLIAM ALSUP UNITED STATES DISTRICT JUDGE 9 11 For the Northern District of California United States District Court 10 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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