Evans v. Oakland Superior Court

Filing 4

ORDER DISMISSING CASE. Signed by Judge William Alsup on 1/27/12. (Attachments: # 1 Certificate of Service)(dt, COURT STAFF) (Filed on 1/27/2012)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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No. C 12-0080 WHA (PR)

JAMES EVANS,

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For the Northern District of California

United States District Court

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Petitioner,

ORDER DISMISSING PETITION
WITHOUT PREJUDICE FOR
FAILURE TO EXHAUST

v.
OAKLAND SUPERIOR COURT,
Respondent.
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Petitioner, a California state inmate, has filed a petition for writ of habeas corpus

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challenging his conviction and sentence in state court. Although he used the form for habeas

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petitions under 28 U.S.C. 2255, that Section applies to challenges to sentences obtained in

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federal court. Challenges to state court convictions and sentences are cognizable under 28

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U.S.C. 2254, and the instant petition is consequently construed as a petition under Section 2254.

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An application for a federal writ of habeas corpus filed by a prisoner who is in state

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custody pursuant to a judgment of a state court, such as petitioner, may not be granted unless

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the prisoner has first exhausted state judicial remedies, either by way of a direct appeal or in

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collateral proceedings, by presenting the highest state court available with a fair opportunity to

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rule on the merits of each and every issue he or she seeks to raise in federal court. See 28

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U.S.C. 2254(b),(c); Granberry v. Greer, 481 U.S. 129, 133-34 (1987). Petitioner has the

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burden of pleading exhaustion in his habeas petition. See Cartwright v. Cupp, 650 F.2d 1103,

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1104 (9th Cir. 1981).
Petitioner has not done so; nor has he presented any exceptional circumstances to excuse

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his doing so. See Granberry, 481 U.S. at 134. Petitioner does not indicate that he has filed any

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appeals of his conviction or sentence in the section of the form petition that asks for this

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information. Moreover, he was sentenced in the trial court on November 8, 2011, only one

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month prior to his signing the instant petition. This is not sufficient time to complete either a

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direct appeal or a collateral challenge to his conviction and sentence in the California Supreme

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Court, which exhaustion requires. Prior to bringing his claims in federal court, petitioner must

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fairly present them to the California Supreme Court. The instant petition is therefore

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DISMISSED without prejudice to refiling after available state judicial remedies are exhausted.

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Rule 11(a) of the Rules Governing Section 2254 Cases now requires a district court to
rule on whether a petitioner is entitled to a certificate of appealability in the same order in

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For the Northern District of California

United States District Court

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which the petition is dismissed. Petitioner has failed to make a substantial showing that a

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reasonable jurist would find this court’s dismissal of his petition debatable or wrong. Slack v.

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McDaniel, 529 U.S. 473, 484 (2000). Consequently, no certificate of appealability is warranted

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in this case.

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Leave to proceed in forma pauperis (docket number 2) is GRANTED.

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The clerk shall close the file.

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IT IS SO ORDERED.

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Dated: January

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, 2012.

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WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE

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