Jones v. Davey

Northern District of California, cand-4:2015-cv-01560

ORDER ADDRESSING PETITIONERS {{14}} JULY 25, 2016 IN FORMA PAUPERIS APPLICATION. Signed by Judge Haywood S. Gilliam, Jr. on 8/1/2016.

Interested in this case?

Current View

Full Text

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 DAMON L. JONES, Case No. 15-cv-01560-HSG (PR) Petitioner, ORDER ADDRESSING PETITIONER'S 8 JULY 25, 2016 IN FORMA PAUPERIS v. APPLICATION 9 DAVE DAVEY, Warden, Re: Dkt. No. 14 10 Respondent. 11 12 Northern District of California United States District Court 13 On April 6, 2015, petitioner Damon L. Jones, an inmate at Corcoran State Prison, filed a 14 petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. On August 12, 2015, the Court 15 issued an Order on Initial Review in which it found that Jones had filed a mixed petition 16 containing exhausted and unexhausted claims. In the Order, the Court explained to Jones that a 17 federal court must dismiss a mixed petition and provided him with an opportunity to amend the 18 petition by withdrawing the unexhausted claims and proceeding only on the exhausted claims, or 19 to dismiss the mixed petition and return to federal court with a new petition once all claims were 20 exhausted. The Court also explained that Jones could seek a stay of the petition while he was 21 exhausting his claims in state court. 22 On October 1, 2015, the Court denied Jones's motion for a stay and gave him an 23 opportunity to decide whether he wanted to dismiss the unexhausted claims and go forward with 24 only the exhausted ones or dismiss the entire action and return to state court to exhaust all his 25 claims before filing a new federal petition. Jones then elected the second option offered him, i.e., 26 that he would dismiss this action and return to state court to exhaust all claims before filing a new 27 federal petition presenting all of his claims. See Dkt. No. 10. The action was thereafter dismissed 28 without prejudice to Jones filing a new federal petition after exhausting state court remedies for all 1 the claims in that new petition. 2 On July 25, 2016, petitioner filed an application to proceed in forma pauperis (IFP) bearing 3 the caption and case number of this action. See Dkt. No. 14. Petitioner also identified case 4 numbers in the California Superior Court and California Supreme Court. This Court understands 5 petitioner to be reporting that state court remedies have now been exhausted and he wishes to 6 proceed with his federal petition. 7 If this is correct, petitioner cannot re-file his petition in this action but must instead file a 8 new petition. Accordingly, if petitioner wishes to re-file his petition after now having exhausted 9 state court remedies, he may do so by filing a new habeas petition and a new IFP application. He 10 should leave the case number blank, so that the Clerk can assign a new case number when the 11 action is filed. 12 The Clerk shall terminate Docket No. 14 and send petitioner the Court's habeas petition Northern District of California United States District Court 13 and prisoner IFP forms. 14 IT IS SO ORDERED. 15 Dated: 8/1/2016 16 17 HAYWOOD S. GILLIAM, JR. 18 United States District Judge 19 20 21 22 23 24 25 26 27 28 2