Santellano v. Santa Clara County et al
Filing
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ORDER OF DISMISSAL; GRANTING Leave to Proceed In Forma Pauperis. Signed by Judge Thelton E. Henderson on 10/11/2011. (Attachments: # 1 Certificate of Service)(tmi, COURT STAFF) (Filed on 10/12/2011)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
United States District Court
For the Northern District of California
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Petitioner,
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No. C-11-1239 TEH (PR)
PAUL A. SANTELLANO,
ORDER OF DISMISSAL; GRANTING
LEAVE TO PROCEED IN FORMA
PAUPERIS
v.
SANTA CLARA COUNTY, et. al.,
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(Doc. ## 2 & 4)
Respondent(s).
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/
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Petitioner, a state prisoner serving his sentence at the
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Santa Clara County Jail in San Jose, California, has filed a pro se
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Petition for a Writ of Habeas Corpus under 28 U.S.C. § 2254
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challenging a judgment of conviction following his guilty plea.
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Doc. #1.
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2 & 4, which the Court now GRANTS.
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the Petition will be DISMISSED.
He also seeks leave to proceed in forma pauperis, Doc. ##
For the reasons set forth below,
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I
According to the Petition, Petitioner pled guilty to
violating California Penal Code section 290.11(b) and was sentenced
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to sixteen months in state custody.
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also shows that Petitioner did not appeal his conviction and
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sentence, see Doc. #1 at 3, and that he has a post-conviction
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petition pending in the California Court of Appeal.
Doc. #1 at 2.
The petition
See id. at 5.
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II
This Court may entertain a Petition for a Writ of Habeas
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Corpus “in behalf of a person in custody pursuant to the judgment of
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a State court only on the ground that he is in custody in violation
United States District Court
For the Northern District of California
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of the Constitution or laws or treaties of the United States.”
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U.S.C. § 2254(a).
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directing the respondent to show cause why the writ should not be
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granted, unless it appears from the application that the applicant
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or person detained is not entitled thereto.”
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It shall “award the writ or issue an order
Id. § 2243.
A prisoner in state custody who wishes to challenge either
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the fact or length of his confinement by filing a federal Petition
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for Writ of Habeas Corpus must first exhaust state judicial
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remedies, either on direct appeal or through collateral proceedings,
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by presenting the highest state court available with a fair
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opportunity to rule on the merits of each and every issue he seeks
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to raise in federal court.
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v. Greer, 481 U.S. 129, 133-34 (1987).
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failure to exhaust is not a bar to Petitioner’s returning to federal
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court after exhausting available state remedies.
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City of Santa Rosa, 49 F.3d 583, 586 (9th Cir. 1995).
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See 28 U.S.C. § 2254(b) & (c); Granberry
A dismissal solely for
See Trimble v.
Because it appears from the Petition that Petitioner has
not presented any of his claims to the California Supreme Court, he
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has not exhausted his state court remedies.
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must be dismissed.
As such, the Petition
See Rose v. Lundy, 455 U.S. 509, 510 (1982).
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III
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For the foregoing reasons and for good cause shown,
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1.
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(Doc. ## 2 & 4) is GRANTED.
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Petitioner’s request to proceed in forma pauperis
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The Petition is DISMISSED WITHOUT PREJUDICE to
Petitioner’s filing a new federal habeas petition once he has
United States District Court
For the Northern District of California
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exhausted state remedies by presenting his claims to the California
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Supreme Court.
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The Clerk is directed to dismiss any pending motions as
moot and close the file.
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IT IS SO ORDERED.
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DATED
10/11/2011
THELTON E. HENDERSON
United States District Judge
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G:\PRO-SE\TEH\HC.11\Santellano-11-1239-grant ifp-dissmiss-failure to exhaust.wpd
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