Monie v. Gonzales et al
Filing
4
ORDER DISMISSING PETITION WITHOUT PREJUDICE; GRANTING LEAVE TO PROCEED IN FORMA PAUPERIS. Signed by Judge Claudia Wilken on 10/26/2011. (ndr, COURT STAFF) (Filed on 10/26/2011)
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
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?