Santellano v. Santa Clara County et al

Filing 5

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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1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE NORTHERN DISTRICT OF CALIFORNIA United States District Court For the Northern District of California 10 11 12 Petitioner, 13 14 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., 15 (Doc. ## 2 & 4) Respondent(s). 16 / 17 18 Petitioner, a state prisoner serving his sentence at the 19 Santa Clara County Jail in San Jose, California, has filed a pro se 20 Petition for a Writ of Habeas Corpus under 28 U.S.C. § 2254 21 challenging a judgment of conviction following his guilty plea. 22 Doc. #1. 23 2 & 4, which the Court now GRANTS. 24 the Petition will be DISMISSED. He also seeks leave to proceed in forma pauperis, Doc. ## For the reasons set forth below, 25 26 27 28 I According to the Petition, Petitioner pled guilty to violating California Penal Code section 290.11(b) and was sentenced 1 to sixteen months in state custody. 2 also shows that Petitioner did not appeal his conviction and 3 sentence, see Doc. #1 at 3, and that he has a post-conviction 4 petition pending in the California Court of Appeal. Doc. #1 at 2. The petition See id. at 5. 5 6 7 II This Court may entertain a Petition for a Writ of Habeas 8 Corpus “in behalf of a person in custody pursuant to the judgment of 9 a State court only on the ground that he is in custody in violation United States District Court For the Northern District of California 10 of the Constitution or laws or treaties of the United States.” 11 U.S.C. § 2254(a). 12 directing the respondent to show cause why the writ should not be 13 granted, unless it appears from the application that the applicant 14 or person detained is not entitled thereto.” 15 28 It shall “award the writ or issue an order Id. § 2243. A prisoner in state custody who wishes to challenge either 16 the fact or length of his confinement by filing a federal Petition 17 for Writ of Habeas Corpus must first exhaust state judicial 18 remedies, either on direct appeal or through collateral proceedings, 19 by presenting the highest state court available with a fair 20 opportunity to rule on the merits of each and every issue he seeks 21 to raise in federal court. 22 v. Greer, 481 U.S. 129, 133-34 (1987). 23 failure to exhaust is not a bar to Petitioner’s returning to federal 24 court after exhausting available state remedies. 25 City of Santa Rosa, 49 F.3d 583, 586 (9th Cir. 1995). 26 27 28 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 2 1 has not exhausted his state court remedies. 2 must be dismissed. As such, the Petition See Rose v. Lundy, 455 U.S. 509, 510 (1982). 3 4 III 5 For the foregoing reasons and for good cause shown, 6 1. 7 (Doc. ## 2 & 4) is GRANTED. 8 9 Petitioner’s request to proceed in forma pauperis 2. 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 10 exhausted state remedies by presenting his claims to the California 11 Supreme Court. 12 13 The Clerk is directed to dismiss any pending motions as moot and close the file. 14 15 IT IS SO ORDERED. 16 17 18 DATED 10/11/2011 THELTON E. HENDERSON United States District Judge 19 20 21 22 23 24 25 26 27 28 G:\PRO-SE\TEH\HC.11\Santellano-11-1239-grant ifp-dissmiss-failure to exhaust.wpd 3

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