Sullins et al v. Exxon/Mobil Corporation

Filing 43

***DISREGARD - DOCUMENT ENTERED IN WRONG CASE NUMBER*** ORDER OF DISMISSAL. Signed by Judge Claudia Wilken on 2/25/10. (scc, COURT STAFF) (Filed on 2/25/2010) Modified on 2/25/2010 (scc, COURT STAFF).

1 2 3 4 5 6 7 8 9 10 United United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 v. LARRY SMALL, Acting Warden, Respondent. / JOSE REYES GUERRA, Petitioner, No. C 09-03948 CW (PR) ORDER OF DISMISSAL IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

Petitioner, a state prisoner, filed the present petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He states that

his petition for a writ of habeas corpus is still pending before the California Supreme Court. The California Supreme Court's official website shows that Petitioner's state habeas petition was filed on February 10, 2010, and that there has not been any final decision from the California Supreme Court. S180191. The exhaustion requirement applicable to federal habeas petitions is not satisfied if there is a pending post-conviction proceeding in state court. See 28 U.S.C. § 2254(b)-(c); Sherwood See Guerra (Jose Reyes) on H.C., Cal. S. Ct. No.

1 2 3 4 5 6 7 8 9 10 United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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

If a post-

conviction challenge to a criminal conviction is pending in state court, a potential federal habeas petitioner must await the outcome of the challenge before his state remedies are considered exhausted. See id. Moreover, the rule in Sherwood applies whether

or not the issue raised in the pending state petition is included in the federal petition, see id., for the reason that a pending state court challenge may result in the reversal of the petitioner's conviction, thereby mooting the federal petition. id. (citations omitted). As Petitioner has a petition currently pending in the California Supreme Court, the instant petition for a writ of habeas corpus is DISMISSED without prejudice to refiling once all state court post-conviction challenges to Petitioner's conviction have been completed, and all claims Petitioner wishes to raise in federal court have been presented to the Supreme Court of California. See 28 U.S.C. § 2254(b)-(c); Rose v. Lundy, 455 U.S. See

509, 522 (1982) (holding every claim raised in federal habeas petition must be exhausted). The Clerk of the Court shall enter judgment and close the file. IT IS SO ORDERED.

Dated:

2/25/10

CLAUDIA WILKEN UNITED STATES DISTRICT JUDGE

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1 2 3 4 5 6 7 8 9 10 United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 JOSE REYES GUERRA, Plaintiff, v. LARRY SMALL et al, Defendant.

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

Case Number: CV09-03948 CW CERTIFICATE OF SERVICE

/

I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District Court, Northern District of California. That on February 25, 2010, I SERVED a true and correct copy(ies) of the attached, by placing said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery receptacle located in the Clerk's office.

Jose Reyes Guerra F-57686 D2-136 Calipatria State Prison P.O. Box 5002 Calipatria, CA 92233-5002 Dated: February 25, 2010 Richard W. Wieking, Clerk By: Sheilah Cahill, Deputy Clerk

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