Rutledge v. Alameda County Sheriff's Department et al Doc.

7
Case 3:07-cv-03663-CRB Document 7 Filed 07/23/2007 Page 1 of 2

1
2
3
4
5
6
7
IN THE UNITED STATES DISTRICT COURT
8
FOR THE NORTHERN DISTRICT OF CALIFORNIA
9
10
EUGENE DARREL RUTLEDGE, )
11 )
Petitioner, ) No. C 07-3663 CRB (PR)
12 )
vs. ) ORDER OF DISMISSAL
13 )
ALAMEDA COUNTY SHERIFF'S ) (Docs # 2 & 3)
14 DEPARTMENT, et al., )
)
15 Respondent(s). )
)
16
17 Petitioner, a prisoner at the Alameda County Jail, has filed a pro se petition for a
18 writ of habeas corpus under 28 U.S.C. § 2254 challenging his recent conviction from the
19 Superior Court of the State of California in and for the County of Alameda.
20 Before the superior court entered judgment on May 25, 2007, petitioner filed
21 several petitions for a writ of habeas corpus and/or prohibition in the state courts. Most
22 have been denied; however, his direct appeal is still pending in the California Court of
23 Appeal, and a petition for a writ of habeas corpus in still pending in the Supreme Court
24 of California.
25 Petitioner must exhaust state judicial remedies as to all claims before turning to
26 the federal courts for habeas review. 28 U.S.C. § 2254(b),(c). This requirement is not
27 satisfied if there is a pending post-conviction proceeding in state court. See Sherwood
28 v. Tomkins, 716 F.2d 632, 634 (9th Cir. 1983). A would-be federal habeas petitioner

Dockets.Justia.com
 Case 3:07-cv-03663-CRB Document 7 Filed 07/23/2007 Page 2 of 2

1 must await the outcome of all pending state post-conviction proceedings before his state
2 remedies are exhausted. See id. Even if the federal constitutional question raised by the
3 petitioner cannot be resolved in the pending state proceeding, that proceeding may result
4 in the reversal of the petitioner's conviction on some other ground, thereby mooting the
5 federal question. See id. (citations omitted). Petitioner must wait until his pending
6 direct appeal and habeas petition are resolved and exhausted in the state courts before
7 seeking habeas relief in federal court. Contrary to petitioner’s suggestion, there are no
8 extraordinary circumstances in this matter compelling a different conclusion.
9 Accordingly, the instant petition is DISMISSED without prejudice to refiling a
10 new petition after all pending state post-conviction proceedings are completed.
11 The clerk shall close the file and terminate all pending motions (see, e.g., docs #
12 2 & 3) as moot. No fee is due.
13 SO ORDERED.
14 DATED: July 23, 2007
CHARLES R. BREYER
15 United States District Judge
16
17
18
19
20
21
22
23
24
25
26
G:\PRO-SE\CRB\HC.07\Rutledge1.or1.wpd
27
28 2