Blount v Sacramento Superior Court
Filing
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ORDER signed by Magistrate Judge Kendall J. Newman on 6/28/11 ORDERING that this action is DISMISSED without prejudice. CASE CLOSED. (Dillon, M)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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REGINALD BLOUNT,
Petitioner,
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No. 2:11-cv-01267 KJN P
vs.
SACRAMENTO SUPERIOR COURT,
ORDER1
Respondent.
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/
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By order filed May 20, 2011, this court granted petitioner’s application to proceed
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in forma pauperis, but dismissed petitioner’s application for a writ of habeas corpus, with leave
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to file an amended petition demonstrating exhaustion of petitioner’s state court remedies. (Dkt.
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No. 4.) On June 8, 2011, this court extended the time for petitioner to demonstrate exhaustion of
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his state court remedies. (Dkt. No. 7.) In both orders, the court noted that petitioner appeared to
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be improperly attempting to exhaust his state court remedies during the pendency of the instant
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federal habeas action. The court emphasized that petitioner must first exhaust his state court
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remedies before pursuing federal habeas relief. 28 U.S.C. § 2254(b), (c); Rose v. Lundy, 455
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U.S. 509, 515-16 (1982).
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Petitioner has consented to the jurisdiction of the magistrate judge for all purposes. (Dkt.
No. 5.) See 28 U.S.C. § 636(c), and E.D. Cal. L. R. (“Local Rule”) 305(a).
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Petitioner has now filed, on June 24, 2011, a notice of “compliance,” to which he
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attached a copy of a writ of habeas corpus he filed in the California Supreme Court on May 31,
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2011, which petitioner concedes was “filed after I rec[eiv]ed your order . . .” (Dkt. No. 8 at 1;
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see id. at 2-7.) Petitioner filed his initial petition in the instant action on May 11, 2011. (Dkt.
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No. 1.) The state and federal petitions appear to challenge the same issues concerning
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petitioner’s conviction and sentence.
It is clear that petitioner did not exhaust his state court remedies before filing his
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federal habeas petition. Therefore, this court has no choice but to dismiss the instant action.
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Petitioner may file a new federal action after the California Supreme Court has acted on the
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petition currently pending before it. Petitioner is again cautioned that the federal habeas corpus
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statute imposes a one-year statute of limitations for filing non-capital habeas petitions in federal
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court, which is tolled during the pendency of a properly-filed application for state collateral
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review. 28 U.S.C. § 2244(d).
Accordingly, for the foregoing reasons, IT IS HEREBY ORDERED that this
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action is dismissed without prejudice.
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DATED: June 28, 2011
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_____________________________________
KENDALL J. NEWMAN
UNITED STATES MAGISTRATE JUDGE
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blou1267.ord.disms
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