Gonzalez v. Attorney General of the State of South Dakota

Filing 8

ORDER Dismissing Petition and denying as moot 2 Motion to Proceed in Forma Pauperis. Signed by Charles B. Kornmann on 08/22/2012. (SAT)

FILF.D
UNITED STATES DISTRICT COURT

AUG 23 2012

DISTRICT OF SOUTH DAKOTA

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NORTHERN DIVISION

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FRANCISCO JAVIER GONZALEZ,
CIV 12-1015
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Petitioner,
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-vsORDER
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MARTY JACKLEY, Attorney General,
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Respondents.

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Petitioner, now confined to the Brown County, South Dakota, jail. filed a petition for a
writ of habeas corpus pursuant to 28 U.S.C. § 2254, seeking to attack his May 3, 2012, state
court conviction for aggravated domestic assault. He alleges ineffective assistance of counsel in
1) fai ling to preserve his right to a preliminary hearing, 2) advising him to enter an Alford plea,
3) failing to fight for his rights at the sentencing hearing, and, apparently, 4) failing to advise him
that, after his plea and sentencing, his probation in another matter would be immediately revoked
and he would likely go to prison anyway.
Petitioner is required to exhaust state court remedies prior to bringing federal habeas
corpus claims. 28 U.S.C. § 2254(b). "The exhaustion requirement has as its purpose giving state
courts 'the first opportunity to review federal constitutional issues and to correct federal
constitutional errors made by the state's trial courts.'" Smittie v. Lockhart, 843 F.2d 295,296-97
(8th Cir. 1988). Petitioner states in his petition that he attempted to file an appeal. He denies
having filed any state habeas petition.
Pursuant to 28 U.S.C. § 2254(b), the federal petition must be dismissed without prejudice
to allow petitioner an opportunity to exhaust his state court habeas remedies.
Accordingly,
IT IS ORDERED:
1. The petition is dismissed without prejudice for failure to exhaust state court remedies.

2. The motion, Doc. 2, to proceed in forma pauperis is denied as moot.
Dated

this~"f'~ugust, 2012.

BY THE COURT:

ATrEST:
JOSEPH HAAS, CLERK

United States District Judge

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(SEAL)

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