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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1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE NORTHERN DISTRICT OF CALIFORNIA 8 9 12 13 14 No. C 12-0080 WHA (PR) JAMES EVANS, 11 For the Northern District of California United States District Court 10 Petitioner, ORDER DISMISSING PETITION WITHOUT PREJUDICE FOR FAILURE TO EXHAUST v. OAKLAND SUPERIOR COURT, Respondent. / 15 16 Petitioner, a California state inmate, has filed a petition for writ of habeas corpus 17 challenging his conviction and sentence in state court. Although he used the form for habeas 18 petitions under 28 U.S.C. 2255, that Section applies to challenges to sentences obtained in 19 federal court. Challenges to state court convictions and sentences are cognizable under 28 20 U.S.C. 2254, and the instant petition is consequently construed as a petition under Section 2254. 21 An application for a federal writ of habeas corpus filed by a prisoner who is in state 22 custody pursuant to a judgment of a state court, such as petitioner, may not be granted unless 23 the prisoner has first exhausted state judicial remedies, either by way of a direct appeal or in 24 collateral proceedings, by presenting the highest state court available with a fair opportunity to 25 rule on the merits of each and every issue he or she seeks to raise in federal court. See 28 26 U.S.C. 2254(b),(c); Granberry v. Greer, 481 U.S. 129, 133-34 (1987). Petitioner has the 27 burden of pleading exhaustion in his habeas petition. See Cartwright v. Cupp, 650 F.2d 1103, 28 1104 (9th Cir. 1981). Petitioner has not done so; nor has he presented any exceptional circumstances to excuse 1 his doing so. See Granberry, 481 U.S. at 134. Petitioner does not indicate that he has filed any 2 appeals of his conviction or sentence in the section of the form petition that asks for this 3 information. Moreover, he was sentenced in the trial court on November 8, 2011, only one 4 month prior to his signing the instant petition. This is not sufficient time to complete either a 5 direct appeal or a collateral challenge to his conviction and sentence in the California Supreme 6 Court, which exhaustion requires. Prior to bringing his claims in federal court, petitioner must 7 fairly present them to the California Supreme Court. The instant petition is therefore 8 DISMISSED without prejudice to refiling after available state judicial remedies are exhausted. 9 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 11 For the Northern District of California United States District Court 10 which the petition is dismissed. Petitioner has failed to make a substantial showing that a 12 reasonable jurist would find this court’s dismissal of his petition debatable or wrong. Slack v. 13 McDaniel, 529 U.S. 473, 484 (2000). Consequently, no certificate of appealability is warranted 14 in this case. 15 Leave to proceed in forma pauperis (docket number 2) is GRANTED. 16 The clerk shall close the file. 17 IT IS SO ORDERED. 18 19 Dated: January 27 , 2012. 20 WILLIAM ALSUP UNITED STATES DISTRICT JUDGE 21 22 23 24 25 26 27 G:\PRO-SE\WHA\HC.12\EVANS0080.DSM.wpd 28 2

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