Monie v. Gonzales et al

Filing 4


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1 IN THE UNITED STATES DISTRICT COURT 2 FOR THE NORTHERN DISTRICT OF CALIFORNIA 3 RONNIE MONIE, No. C 11-04701 CW (PR) 4 Petitioner, ORDER DISMISSING PETITION WITHOUT PREJUDICE; GRANTING LEAVE TO PROCEED IN FORMA PAUPERIS 5 v. 6 7 CCI Warden FERNANDO GONZALES, PBSP Warden G. LEWIS, 8 Respondents. _____________________________/ (Docket no. 3) 9 United States District Court For the Northern District of California 10 Petitioner, a state prisoner currently incarcerated at Pelican 11 Bay State Prison (PBSP), has filed this pro se petition for a writ 12 of habeas corpus under 28 U.S.C. § 2254, challenging his inability 13 to earn time credits due to his validation as a gang associate and 14 consequent indeterminate placement in the secured housing unit 15 (SHU). 16 Specifically, Petitioner challenges the validity of California 17 legislation enacted on January 25, 2010, which provides that, from 18 that date, inmates housed in the SHU are no longer eligible to earn 19 credits toward early release. 20 Petitioner maintains that the law raises ex post facto concerns 21 because at the time he plead guilty he was told he would be 22 entitled to earn time credits while incarcerated, and because he 23 was validated as a gang associate in 2007, before the law went into 24 effect. 25 validity of his criminal conviction or his placement in the SHU. 26 Petitioner raised his ex post facto claim in a state habeas See Cal. Pen. Code § 2933.6. Petitioner makes clear that he is not challenging the 27 petition in superior court. 28 August 10, 2011, finding no ex post facto violation. That court denied the petition on Petitioner did not seek further state habeas relief before filing the instant 1 petition. 2 Individuals in state custody who wish to challenge in federal 3 habeas proceedings either the fact or length of their confinement 4 are first required to exhaust state judicial remedies by presenting 5 the highest state court available with a fair opportunity to rule 6 on the merits of each and every claim they seek to raise in federal 7 court. 8 515-16 (1982). 9 as to all claims, the district court must dismiss the petition. See 28 U.S.C. § 2254(b),(c)); Rose v. Lundy, 455 U.S. 509, If available state remedies have not been exhausted United States District Court For the Northern District of California 10 Id. at 510; Guizar v. Estelle, 843 F.2d 371, 372 (9th Cir. 1988). 11 A dismissal solely for failure to exhaust is not a bar to returning 12 to federal court after exhausting available state remedies. 13 Trimble v. City of Santa Rosa, 49 F.3d 583, 586 (9th Cir. 1995). 14 See Because Petitioner did not present his claims to the state 15 supreme court for review, either in a petition for review or in a 16 state petition for a writ of habeas corpus, his federal petition is 17 unexhausted and must be DISMISSED. 18 prejudice to Petitioner returning to state court to exhaust his 19 state remedies and then filing a new federal habeas corpus 20 petition. This dismissal is without 21 Leave to proceed in forma pauperis is GRANTED. 22 The Clerk of the Court shall enter judgment and close the 23 file. 24 This Order terminates Docket no. 3. 25 IT IS SO ORDERED. 26 27 28 DATED: 10/26/2011 CLAUDIA WILKEN United States District Judge 2 1 UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA 2 3 RONNIE MONIE, 4 Case Number: CV11-04701 CW Plaintiff, 5 6 7 8 CERTIFICATE OF SERVICE v. FERNANDO GONZALES et al, Defendant. / 9 United States District Court For the Northern District of California 10 11 12 13 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 October 26, 2011, 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. 14 15 16 17 Ronnie Monie F12462 C10-219 Pelican Bay State Prison P.O. Box 7500 Crescent City, CA 95532 18 19 20 Dated: October 26, 2011 Richard W. Wieking, Clerk By: Nikki Riley, Deputy Clerk 21 22 23 24 25 26 27 28 3

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