Benavidez v. Hartley

Filing 6

ORDER DISMISSING CASE. Signed by Judge William Alsup on 11/23/10. (Attachments: # 1 Certificate of Service)(dt, COURT STAFF) (Filed on 11/24/2010)

Download PDF
Benavidez v. Hartley Doc. 6 1 2 3 4 5 6 7 8 9 10 LEON BENAVIDEZ, Petitioner, v. JAMES D. HARTLEY, Warden, Respondents. / (Docket No. 2) No. C 10-5159 WHA (PR) ORDER OF DISMISSAL; GRANTING LEAVE TO PROCEED IN FORMA PAUPERIS IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA United States District Court 11 For the Northern District of California 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Petitioner, a California state prisoner, 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). In California, the supreme court, intermediate courts of appeal, and superior courts all have original habeas corpus jurisdiction. See Nino v. Galaza, 183 F.3d 1003, 1006 n.2 (9th Cir. 1999). Although a superior court order denying habeas corpus relief is non-appealable, a state prisoner may file a new habeas corpus petition in the court of appeals. See id. If the court of appeals denies relief, the petitioner may seek review in the California Supreme Court by way of a petition for review, or may instead file an original habeas petition in the supreme court. See id. at n.3. Dockets.Justia.com 1 2 3 4 5 6 7 8 9 10 Petitioner has the burden of pleading exhaustion in his habeas petition. See Cartwright v. Cupp, 650 F.2d 1103, 1104 (9th Cir. 1981). Petitioner has not done so. He indicates in his petition that he has presented his claims only to the state superior court in two habeas petitions (Pet. 3-4). The last of these petitions was denied on August 26, 2010, approximately two months prior to the filing of the instant petition. No appeals or petitions in petitioner's name appear in the California Supreme Court's electronic database of cases. To properly exhaust his claims, petitioner must properly raise them in the California Supreme Court. Petitioner has also not presented any exceptional circumstances to excuse his failure to exhaust. See Granberry, 481 U.S. at 134. The petition is therefore DISMISSED without prejudice to refiling after available state judicial remedies are exhausted. Good cause appearing, petitioner's application to proceed in forma pauperis (docket number 2) is GRANTED. The clerk shall close the file. IT IS SO ORDERED. United States District Court 11 For the Northern District of California 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Dated: November 23 , 2010. WILLIAM ALSUP UNITED STATES DISTRICT JUDGE G:\PRO-SE\WHA\HC.10\BENAVIDEZ5159.DSM-EXH.wpd 2

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.


Why Is My Information Online?