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MDR 

WO 

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

Juan Torres Urias, 

Petitioner, 

v. 

State of Arizona, et al., 

Respondents. 

No. CV 15-1616-PHX-DGC (JFM) 

ORDER 

Petitioner Juan Torres Urias, who is confined in the Corrections Corporation of 

America’s Central Arizona Detention Center in Florence, Arizona, has filed a pro se

Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 1) and an 

Application to Proceed In Forma Pauperis (Doc. 2). The Court will dismiss the Petition 

without prejudice. 

I. Application to Proceed In Forma Pauperis

Petitioner’s Application to Proceed In Forma Pauperis indicates that his inmate 

trust account balance is less than $25.00. Accordingly, the Application to Proceed In 

Forma Pauperis will be granted. See LRCiv 3.5(b). 

II. Petition 

Petitioner was convicted in Maricopa County Superior Court, case #CR 2014-

133421, of one count of Threatening or Intimidating and one count of Threatening and 

Intimidating and Domestic Violence, and was sentenced to concurrent, six-month terms 

of imprisonment in the Maricopa County Jail, with 242 days’ presentence incarceration 

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credit.1 In his Petition, Petitioner names State of Arizona as Respondent and the Arizona 

Attorney General as an Additional Respondent. Petitioner raises two grounds for relief. 

III. Discussion

 Before the court may grant habeas relief to a state prisoner, the prisoner must 

exhaust remedies available in the state courts. 28 U.S.C. § 2254(b)(1); O’Sullivan v. 

Boerckel, 526 U.S. 838, 842 (1999). An Arizona petitioner sentenced to less than the 

death penalty may exhaust his federal claims by presenting them in a procedurally proper 

way to the Arizona Court of Appeals on direct appeal and/or in post-conviction 

proceedings, without seeking discretionary review in the Arizona Supreme Court. 

Crowell v. Knowles, 483 F. Supp. 2d 925, 928-30, 933 (D. Ariz. 2007) (following 1989 

statutory amendment, Arizona Court of Appeals has jurisdiction over criminal 

convictions involving less than a death sentence); cf. Swoopes v. Sublett, 196 F.3d 1008, 

1010 (9th Cir. 1999) (citing pre-1989 statute). To exhaust a claim, a petitioner must 

describe “both the operative facts and the federal legal theory on which his claim is based 

so that the state courts [could] have a ‘fair opportunity’ to apply controlling legal 

principles to the facts bearing upon his constitutional claim.” Castillo v. McFadden, 399 

F.3d 993, 999 (9th Cir. 2005) (quoting Kelly v. Small, 315 F.3d 1063, 1066 (9th Cir. 

2003), overruled in part on other grounds by Robbins v. Carey, 481 F.3d 1143 (9th Cir. 

2007)). The failure to exhaust subjects the Petitioner to dismissal. See Gutierrez v. 

Griggs, 695 F.2d 1195, 1197 (9th Cir. 1983). 

 If a prisoner has a direct appeal or initial petition for post-conviction relief 

pending in state court, the federal exhaustion requirement is not satisfied. See Sherwood 

v. Tomkins, 716 F.2d 632, 634 (9th Cir. 1983) (pending appeal); Schnepp v. Oregon, 333 

F.2d 288, 288 (9th Cir. 1964) (pending post-conviction proceeding); see also Henderson 

 

1

 Although Petitioner asserts in his Petition that he was not convicted of any crimes, he is incorrect. The Court takes judicial notice of the fact that Petitioner was 

found guilty and sentenced for the misdemeanor offenses of Threatening or Intimidating and one count of Threatening and Intimidating and Domestic Violence. See http://www. courtminutes.maricopa.gov/docs/Criminal/032015/m6742901.pdf (last visited Aug. 24, 2015). 

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v. Johnson, 710 F.3d 872, 874 (9th Cir. 2013) (“Sherwood stands for the proposition that 

a district court may not adjudicate a federal habeas petition while a petitioner’s direct 

state appeal is pending”). The prisoner must await the outcome of the pending state-court 

challenge before proceeding in federal court, “even where the issue to be challenged in 

the writ of habeas corpus has been finally settled in the state courts.” Sherwood, 716 

F.3d at 634. The pending state-court proceeding could affect the conviction or sentence 

and, therefore, could ultimately affect or moot these proceedings. Id.

 Petitioner has filed a notice of post-conviction relief in the Maricopa County 

Superior Court.2

 Thus, the Petition in this case is premature and must be dismissed. See

id.; Schnepp. The Court will dismiss this case without prejudice. 

 In addition, the Court notes that there are several other defects with the Petition. 

First, it is a jurisdictional requirement that “the habeas petitioner be ‘in custody’ under 

the conviction or sentence under attack at the time his petition is filed.” Maleng v. Cook, 

490 U.S. 488, 490-91 (1989). Petitioner was not in custody under his state court 

conviction when he filed his petition; he was in custody under his federal court 

conviction and sentence. See United States v. Torres-Urias, CR 15-0549-PHX-SPL. 

Second, § 2254(a) requires the Court to “entertain an application for a writ of habeas 

corpus [o]n behalf of a person in custody pursuant to the judgment of a State court only 

on the ground that he is in custody in violation of the Constitution or laws or 

treaties of the United States.” (Emphasis added.) Absent from Petitioner’s grounds for 

relief is any statement that he is in custody in violation of the Constitution or the laws or 

treaties or the United States. Third, a petitioner for habeas corpus relief under 28 U.S.C. 

§ 2254 must name the state officer having custody of him as the respondent to the 

petition. See Rule 2(a), Rules Governing Section 2254 Cases; Belgarde v. Montana, 123 

F.3d 1210, 1212 (9th Cir. 1997). The State of Arizona is not a proper Respondent. 

. . . . 

 

2 See http://www.superiorcourt.maricopa.gov/docket/CriminalCourtCases/caseSea 

rch.asp (search “Case Number” for “CR2014-133421”) (last visited Aug. 24, 2015). 

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IT IS ORDERED:

(1) Petitioner’s Application to Proceed In Forma Pauperis (Doc. 2) is granted. 

 (2) Petitioner’s Petition for Habeas Corpus (Doc. 1) and this case are 

dismissed without prejudice. 

 (3) The Clerk of Court must enter judgment accordingly and close this case. 

(4) 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 

because reasonable jurists would not find the Court’s procedural ruling debatable. See 

Slack v. McDaniel, 529 U.S. 473, 484 (2000). 

Dated this 28th day of August, 2015. 

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