Free Order on Motion for Miscellaneous Relief - District Court of Arizona - Arizona

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6 IN THE UNITED STATES DISTRICT COURT
7 FOR THE DISTRICT OF ARIZONA
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9 Frank Ted Johnson, No. CIV 04-403-Pl-IX-MHM (MS)
I0 Petitioner, ORDER
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13 Warden CluflQ et al.,
14 Respondents.
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17 On February 25, 2004, Petitioner Frank Ted Johnson, presently confmed in the
18 Arizona State Prison C0mplex—Tucs0n, fled a Petition for Writ of Habeas Corpus by a
19 Person in State Custody Pursuant to 28 U.S.C. § 2254 ("Petition"). On May 28, 2004, the
20 Court issued an order which dismissed the Petition with leave to amend because it was
21 unclear whether Petitioner still had an appeal pending before the Arizona Court of Appeals.
22 Petitioner did not file an amended Petition. This case was therefore dismissed for failure to
23 comply with a Court order, and judgment wasentered, on July 19, 2004 (Doc. #5).
24 On May 5, 2005, Petitioner tiled a Motion to Allow Filing of Habeas Corpus (Doc.
25 #6) in which he asks the Court to allow him to file his habeas petition. Petitioner alleges that
26 waiting for judgment from the Arizona Court of Appeals is futile because more than a year
27 has passed since Petitioner tiled his Petition for Review of Post Conviction Relief Petitioner
28 also attaches a letter from the Arizona Court of Appeals, dated March 1, 2005, which
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1 indicates that Petitioner's Petition for Review of Post Conviction Relief is still pending in that
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3 As explained in the Court's May 28, 2004 Order,
4 when . . .an appeal of a state criminal conviction is pending, awould-behabeas
corpus petitioner must await the outcome of his appeal before his state
5 remedies are exhausted, even where the issue to be challenged m the writ of
habeas corpus has been finally settled in the state courts.
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|;E]ven if the federal constitutional_qnestion raised by the habeas corpus
7 petitioner cannot be resolved in a pendrngstate appeal, that appeal may result
in the reversal ofthe petitioner’s conviction on some other ground, thereby
8 mooting the federal question. (citations omitted)
9 Sherwood v. Tomkins, 716 F.2d 632, 634 (9th Cir. 1983); see also, Daniels v. Nelson, 415
10 F .2d 323 (9th Cir. 1969) (federal habeas premature where state appeal is pending and
11 collateral attack on conviction still available). As Petitioner has affirmatively alleged that
l2 his Petition for Review of Post Conviction Relief is still pending in the Arizona Court of
13 Appeals, this Court may not consider his federal petition for writ of habeas corpus because
14 it is still possible that Petitioner may be granted relief in state court.
15 Petitioner should note that he is free to file a new petition for writ of habeas corpus
16 once his state appeals have been resolved. Any new petition filed by Petitioner must be on
17 the Cotut—approved form and be accompanied by the five dollar ($5.00) Bling fee or an
18 Application to Proceed In Forma Pauperis. Petitioner is instmcted not to file any further
19 motions in this closed case.
20 IT IS THEREFORE ORDERED that Petitioner's May 5, 2005 Motion to Allow
21 Filing of Habeas Corpus (Doc. #6) is DENIED. _ .
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24 DATED this Zct day of drJ€.— 2005.
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U 'te States Dis r udge
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Case 2:04-cv-00403-MHM--MS

Document 7

Filed 07/05/2005

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Case 2:04-cv-00403-MHM--MS

Document 7

Filed 07/05/2005

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