Murphy v. Unknown Party ( 2023 )

1 MDR 2 WO 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Annette Theadora Murphy, No. CV-23-08083-PCT-JAT (ESW) 10 Petitioner, 11 v. ORDER 12 Unknown, 13 Respondent. 14 15 On May 11, 2023, pro se Petitioner Annette Theadora Murphy, who is confined in 16 the Arizona State Prison Complex-Perryville,1 filed a Petition for Writ of Habeas Corpus 17 pursuant to 28 U.S.C. § 2254 (Doc. 1) and paid the filing fee. The Court will dismiss the 18 Petition without prejudice. 19 I. Pending Petition 20 Petitioner was convicted in Mohave County Superior Court, case #CR-2015-00490, 21 of transportation of dangerous drugs for sale and failure to appear at sentencing. On March 22 23, 2023, she was sentenced to 10 years’ imprisonment for the transportation conviction 23 and five years’ imprisonment for the failure-to-appear conviction. Petitioner alleges she 24 has a petition for post-conviction relief, which she filed on April 4, 2023, pending in the 25 Mohave County Superior Court. 26 27 1 Petitioner was confined in the Mohave County Jail when she filed her Petition but was subsequently transferred to the Arizona State Prison Complex-Perryville. See https:// 28 corrections.az.gov/inmate-data-search (search “Search by Name” for “Last Name” as “Murphy,” “First Initial” as “A,” and “Gender” as “Female”; click on hyperlink for inmate number “089479”) (last visited June 20, 2023). 1 II. Discussion 2 Before the court may grant habeas relief to a state prisoner, the prisoner must 3 exhaust remedies available in the state courts. 28 U.S.C. § 2254(b)(1); O’Sullivan v. 4 Boerckel, 526 U.S. 838, 842 (1999). An Arizona petitioner sentenced to less than the death 5 penalty may exhaust her federal claims by presenting them in a procedurally proper way 6 to the Arizona Court of Appeals on direct appeal and/or in post-conviction proceedings, 7 without seeking discretionary review in the Arizona Supreme Court. Crowell v. Knowles, 8 483 F. Supp. 2d 925, 928-30, 933 (D. Ariz. 2007) (following 1989 statutory amendment, 9 Arizona Court of Appeals has jurisdiction over criminal convictions involving less than a 10 death sentence); cf. Swoopes v. Sublett, 196 F.3d 1008, 1010 (9th Cir. 1999) (citing pre- 11 1989 statute). To exhaust a claim, a petitioner must describe “both the operative facts and 12 the federal legal theory on which his claim is based so that the state courts [could] have a 13 ‘fair opportunity’ to apply controlling legal principles to the facts bearing upon his 14 constitutional claim.” Castillo v. McFadden, 399 F.3d 993, 999 (9th Cir. 2005) (quoting 15 Kelly v. Small, 315 F.3d 1063, 1066 (9th Cir. 2003), overruled in part on other grounds by 16 Robbins v. Carey, 481 F.3d 1143 (9th Cir. 2007)). The failure to exhaust subjects the 17 Petitioner to dismissal. See Gutierrez v. Griggs, 695 F.2d 1195, 1197 (9th Cir. 1983). 18 If a prisoner has a direct appeal or initial petition for post-conviction relief pending 19 in state court, the federal exhaustion requirement is not satisfied. See Sherwood v. Tomkins, 20 716 F.2d 632, 634 (9th Cir. 1983) (pending appeal); Schnepp v. Oregon, 333 F.2d 288, 288 21 (9th Cir. 1964) (pending post-conviction proceeding); see also Henderson v. Johnson, 710 22 F.3d 872, 874 (9th Cir. 2013) (“Sherwood stands for the proposition that a district court 23 may not adjudicate a federal habeas petition while a petitioner’s direct state appeal is 24 pending”). The prisoner must await the outcome of the pending state-court challenge 25 before proceeding in federal court, “even where the issue to be challenged in the writ of 26 habeas corpus has been finally settled in the state courts.” Sherwood, 716 F.3d at 634. The 27 pending state-court proceeding could affect the conviction or sentence and, therefore, could 28 ultimately affect or moot these proceedings. Id. 1 In light of Petitioner’s pending petition for post-conviction relief, the Petition is 2| premature and must be dismissed. See id.; Schnepp. The Court will dismiss the case 3| without prejudice. 4| ITIS ORDERED: 5 (1) Petitioner’s Petition for Writ of Habeas Corpus (Doc. 1) and this case are 6| dismissed without prejudice. 7 (2) The Clerk of Court must enter judgment accordingly and close this case. 8 (3) Pursuant to Rule 11(a) of the Rules Governing Section 2254 Cases, in the event Petitioner files an appeal, the Court declines to issue a certificate of appealability 10 | because reasonable jurists would not find the Court’s procedural ruling debatable. See 11 | Slack vy. McDaniel, 529 U.S. 473, 484 (2000). 12 (4) The Clerk of Court is directed to update the docket to reflect that Petitioner 13 | is currently confined in the Arizona State Prison Complex-Perryville and her inmate 14| number is 089479. The Clerk of Court must send a copy of this Order to Petitioner at that 15 | address. 16 Dated this 23rd day of June, 2023. 17 18 □ 19 0 James A. Teil Org Senior United States District Judge 21 22 23 24 25 26 27 28 -3-