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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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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WAYMOND STARRITT,
Petitioner,

For the Northern District of California

United States District Court

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No. C 16-1380 WHA (PR)
ORDER GRANTING MOTION TO
DISMISS

v.
HUMBOLDT COUNTY
CORRECTIONAL FACILITY,

(Dkt. No. 13)

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Respondent.
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INTRODUCTION
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This is a habeas case brought pro se by a state prisoner under 28 U.S.C. 2254
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challenging his state court conviction. Respondent has filed a motion to dismiss the petition for
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failure to exhaust state court remedies. Petitioner filed an opposition, and respondent filed a
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reply brief. The motion is granted and the case is dismissed without prejudice.
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ANALYSIS
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It is clear from the face of the petition that the petition is not exhausted. In order
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Respondent argues that the instant petition is not exhausted. An application for a federal writ of
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habeas corpus filed by a prisoner who is in state custody pursuant to a judgment of a state court
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may not be granted unless the prisoner has first exhausted state judicial remedies, either by way
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of a direct appeal or in collateral proceedings, by presenting the highest state court available
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with a fair opportunity to rule on the merits of each and every issue he or she seeks to raise in
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federal court. See 28 U.S.C. § 2254(b),(c); Granberry v. Greer, 481 U.S. 129, 133-34 (1987).
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Petitioner states in his petition that he did not appeal or seek other form of collateral review of

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his conviction in the state courts before filing the instant federal petition (Pet. 4-5). Petitioner

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admits as much in his opposition, stating that he is currently pursuing a state court appeal (Opp.

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1). The exhaustion requirement is not satisfied if an appeal of a state conviction is pending in

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the state appellate court. Sherwood v. Tomkins, 716 F.2d 632, 634 (9th Cir. 1983); see also

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Gatlin v. Madding, 189 F.3d 882, 889 (9th Cir. 1999) (appropriate time to assess exhaustion is

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when federal petition filed, not when it is reviewed in federal court; if petitioner exhausts after

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filing, he can raise claims in subsequent petition). Petitioner states that the reason he did not

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seek appellate review in the state courts before filing his federal petition is that he is seeking

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“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

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For the Northern District of California

United States District Court

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expedite relief. As petitioner has not exhausted any of his claims, the petition must be

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dismissed. See Coleman v. Thompson, 501 U.S. 722, 731 (1991) (wholly unexhausted petition

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must be dismissed).

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Petitioner alternatively asks for a stay of this petition. “[A] district court has discretion

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to stay and hold in abeyance fully unexhausted petitions under the circumstances set forth in

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Rhines.” Mena v. Long, 813 F.3d 907, 912 (9th Cir. 2016). To qualify for a stay under Rhines

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v. Weber, 544 U.S. 269, 277-78 (2005), the petition must be potentially meritorious and there

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must be good cause for failure to exhaust his claims before filing his federal petition. Wanting

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“swifter justice” is not good cause for failing to exhaust prior to filing in federal court.

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Accordingly, a stay is not warranted.

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CONCLUSION
For the foregoing reasons, respondent’s motion to dismiss (dkt. 6) is GRANTED and the

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petition is DISMISSED without prejudice to filing a federal habeas petition after the California

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Supreme Court has ruled on petitioner’s claims.

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Rule 11(a) of the Rules Governing Section 2254 Cases now requires a district court to

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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 denied. Petitioner has failed to make a substantial showing that a

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reasonable jurist would find the dismissal of his petition debatable or wrong. Slack v.

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McDaniel, 529 U.S. 473, 484 (2000). Consequently, no certificate of appealability is warranted

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in this case.

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The clerk shall enter judgment and close the file.

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IT IS SO ORDERED.

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Dated: February

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, 2017.

WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE

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For the Northern District of California

United States District Court

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