Ault v. California Department of Corrections

Filing 4

ORDER DISMISSING CASE. Signed by Judge William Alsup on 10/28/10. (Attachments: # 1 Certificate of Service)(dt, COURT STAFF) (Filed on 10/28/2010)

Ault v. California Department of Corrections

Doc. 4

1 2 3 4 5 6 7 8 9 10 EDWARD JOHN AULT, Petitioner, vs. CALIFORNIA DEPARTMENT OF CORRECTIONS, Respondent. / No. C 10-4337 WHA (PR) ORDER DISMISSING WITHOUT PREJUDICE FOR FAILURE TO EXHAUST; GRANTING LEAVE TO PROCEED IN FORMA PAUPERIS IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

United States District Court

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For the Northern District of California

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(Docket No. 2)

Petitioner, a California state inmate, has filed a petition for writ of habeas corpus pursuant to 28 U.S.C. 2254. An application for a federal writ of habeas corpus filed by a prisoner who is in state custody pursuant to a judgment of a state court may not be granted unless the prisoner has first exhausted state judicial remedies, either by way of a direct appeal or in collateral proceedings, by presenting the highest state court available with a fair opportunity to rule on the merits of each and every issue he or she seeks to raise in federal court. See 28 U.S.C. § 2254(b),(c); Granberry v. Greer, 481 U.S. 129, 133-34 (1987). Petitioner has the burden of pleading exhaustion in his habeas petition. See Cartwright v. Cupp, 650 F.2d 1103, 1104 (9th Cir. 1981). In his petition, petitioner has indicated that he has not presented to the California Supreme Court on direct appeal or in a habeas petition. Petitioner has also presented no exceptional circumstances to excuse his doing so. See Granberry, 481 U.S. at 134. The petition is therefore DISMISSED without prejudice to refiling after available state judicial

Dockets.Justia.com

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remedies are exhausted. Petitioner's application for leave to proceed in forma pauperis (docket number 2) is GRANTED . The clerk shall close the file. IT IS SO ORDERED. Dated: October 28 , 2010.

WILLIAM ALSUP UNITED STATES DISTRICT JUDGE

United States District Court

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For the Northern District of California

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