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)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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RONNIE MONIE,

No. C 11-04701 CW (PR)

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Petitioner,

ORDER DISMISSING PETITION
WITHOUT PREJUDICE; GRANTING
LEAVE TO PROCEED IN FORMA
PAUPERIS

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v.
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CCI Warden FERNANDO GONZALES,
PBSP Warden G. LEWIS,

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Respondents.
_____________________________/

(Docket no. 3)

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United States District Court
For the Northern District of California

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Petitioner, a state prisoner currently incarcerated at Pelican

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Bay State Prison (PBSP), has filed this pro se petition for a writ

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of habeas corpus under 28 U.S.C. § 2254, challenging his inability

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to earn time credits due to his validation as a gang associate and

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consequent indeterminate placement in the secured housing unit

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(SHU).

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Specifically, Petitioner challenges the validity of California

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legislation enacted on January 25, 2010, which provides that, from

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that date, inmates housed in the SHU are no longer eligible to earn

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credits toward early release.

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Petitioner maintains that the law raises ex post facto concerns

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because at the time he plead guilty he was told he would be

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entitled to earn time credits while incarcerated, and because he

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was validated as a gang associate in 2007, before the law went into

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effect.

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validity of his criminal conviction or his placement in the SHU.

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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

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petition in superior court.

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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

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petition.

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Individuals in state custody who wish to challenge in federal

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habeas proceedings either the fact or length of their confinement

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are first required to exhaust state judicial remedies by presenting

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the highest state court available with a fair opportunity to rule

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on the merits of each and every claim they seek to raise in federal

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court.

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515-16 (1982).

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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

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Id. at 510; Guizar v. Estelle, 843 F.2d 371, 372 (9th Cir. 1988).

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A dismissal solely for failure to exhaust is not a bar to returning

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to federal court after exhausting available state remedies.

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Trimble v. City of Santa Rosa, 49 F.3d 583, 586 (9th Cir. 1995).

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See

Because Petitioner did not present his claims to the state

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supreme court for review, either in a petition for review or in a

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state petition for a writ of habeas corpus, his federal petition is

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unexhausted and must be DISMISSED.

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prejudice to Petitioner returning to state court to exhaust his

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state remedies and then filing a new federal habeas corpus

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petition.

This dismissal is without

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Leave to proceed in forma pauperis is GRANTED.

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The Clerk of the Court shall enter judgment and close the

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file.

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This Order terminates Docket no. 3.

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IT IS SO ORDERED.

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DATED: 10/26/2011
CLAUDIA WILKEN
United States District Judge

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UNITED STATES DISTRICT COURT
FOR THE
NORTHERN DISTRICT OF CALIFORNIA

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RONNIE MONIE,
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Case Number: CV11-04701 CW
Plaintiff,

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CERTIFICATE OF SERVICE
v.
FERNANDO GONZALES et al,
Defendant.

/

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United States District Court
For the Northern District of California

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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.

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Ronnie Monie F12462
C10-219
Pelican Bay State Prison
P.O. Box 7500
Crescent City, CA 95532

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Dated: October 26, 2011
Richard W. Wieking, Clerk
By: Nikki Riley, Deputy Clerk

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