Juares v. Gibson et al
Filing
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ORDER DISMISSING CASE; GRANTING LEAVE TO PROCEED IN FORMA PAUPERIS. Signed by Judge William Alsup on 10/26/12. (Attachments: # 1 Certificate/Proof of Service)(dt, COURT STAFF) (Filed on 11/1/2012)
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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 12-5309 WHA (PR)
PORFIRIO JUARES,
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For the Northern District of California
United States District Court
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Petitioner,
ORDER OF DISMISSAL;
GRANTING LEAVE TO PROCEED
IN FORMA PAUPERIS
v.
C. GIBSON, Warden,
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Respondents.
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(Docket No. 2)
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Petitioner, a California state prisoner, has filed a petition for writ of habeas corpus
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pursuant to 28 U.S.C. 2254. An application for a federal writ of habeas corpus filed by a
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prisoner who is in state custody pursuant to a judgment of a state court may not be granted
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unless the prisoner has first exhausted state judicial remedies, either by way of a direct appeal
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or in collateral proceedings, 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 or she seeks to raise in federal
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court. See 28 U.S.C. § 2254(b),(c); Granberry v. Greer, 481 U.S. 129, 133-34 (1987).
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In California, the supreme court, intermediate courts of appeal, and superior courts all
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have original habeas corpus jurisdiction. See Nino v. Galaza, 183 F.3d 1003, 1006 n.2 (9th Cir.
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1999). Although a superior court order denying habeas corpus relief is non-appealable, a state
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prisoner may file a new habeas corpus petition in the court of appeals. See id. If the court of
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appeals denies relief, the petitioner may seek review in the California Supreme Court by way of
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a petition for review, or may instead file an original habeas petition in the supreme court. See
id. at n.3.
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Petitioner has the burden of pleading exhaustion in his habeas petition. See Cartwright
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v. Cupp, 650 F.2d 1103, 1104 (9th Cir. 1981). Petitioner has not done so. He indicates in his
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petition that he has presented his claims only to the California Court of Appeal (Pet. 3). The
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referenced attachments bear this out, as they show that he has presented his claims – that his
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appellate lawyer was ineffective and that he was improperly denied appellate transcripts – only
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to the California Court of Appeal and not to the California Supreme Court. No appeals or
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petitions in petitioner’s name appear in the California Supreme Court’s electronic database of
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cases. To properly exhaust his claims, petitioner must properly raise them in the California
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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
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For the Northern District of California
United States District Court
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without prejudice to refiling after available state judicial remedies are exhausted.
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Good cause appearing, petitioner’s application 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: October
26 , 2012.
WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE
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G:\PRO-SE\WHA\HC.12\JUARES5309.DSM-EXH.wpd
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