Lewis v. Wong

Filing 5

ORDER OF DISMISSAL with Leave to Amend. Petitioner may file an Amended Petition within (30) thirty-days of the date of this Order. Signed by Judge Saundra Brown Armstrong, on 3/5/10. (lrc, COURT STAFF) (Filed on 3/8/2010) Modified on 3/9/2010 (jlm, 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. R. K. WONG, Warden, REGINALD T. LEWIS, Petitioner,

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

No. C 09-04800 SBA (PR) ORDER OF DISMISSAL WITH LEAVE TO AMEND

Respondent.

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Petitioner, a state prisoner, filed this pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. He has paid the filing fee. He admits that at the time he filed this petition, he had a habeas action pending in state court. Prisoners in state custody who wish to challenge in federal habeas proceedings either the fact or length of their confinement are first required to exhaust state judicial remedies by presenting the highest state court available with a fair opportunity to rule on the merits of each and every claim they seek to raise in federal court. See 28 U.S.C. § 2254(b), (c); Rose v. Lundy, 455 U.S. 509, 51516 (1982). The exhaustion requirement is not satisfied if there is a challenge to the fact or length of confinement pending in state court. See Sherwood v. Tomkins, 716 F.2d 632, 634 (9th Cir. 1983). If available state remedies have not been exhausted as to all claims, the district court must dismiss the petition. Id. at 510; Guizar v. Estelle, 843 F.2d 371, 372 (9th Cir. 1988). A dismissal solely for failure to exhaust is not a bar to returning to federal court after exhausting available state remedies. See Trimble v. City of Santa Rosa, 49 F.3d 583, 586 (9th Cir. 1995). Because Petitioner states that he has a habeas petition still pending before state court, his present petition appears to be unexhausted for purposes of federal habeas corpus review. Moreover, it is unclear to this Court whether Petitioner is seeking federal habeas corpus relief based on other grounds for relief currently pending before state court. Accordingly, the petition must be DISMISSED for Petitioner to file an amended petition which clarifies the nature and exhaustion status of all claims which he seeks to raise in his federal petition. If Petitioner seeks to add newly

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exhausted claims to his petition he shall include those in the amended petition as well. Petitioner shall use the form provided with this Order to file his amended petition. CONCLUSION For the foregoing reasons, the petition is DISMISSED with leave to amend. Petitioner may file an amended petition, as set forth above, within thirty (30) days of the date of this Order. The failure to do so will result in the dismissal of this petition without prejudice and without further leave to amend. IT IS SO ORDERED. DATED: 3/5/10 SAUNDRA BROWN ARMSTRONG UNITED STATES DISTRICT JUDGE

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UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

REGINALD T. LEWIS, Plaintiff, v. R.K. WONG et al, Defendant. /

Case Number: CV09-04800 SBA 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 March 8, 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.

Reginald T. Lewis P95159 California State Prison - San Quentin San Quentin, CA 94974 Dated: March 8, 2010 Richard W. Wieking, Clerk By: LISA R CLARK, Deputy Clerk

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