Juares v. Gibson et al

Filing 4

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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1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE NORTHERN DISTRICT OF CALIFORNIA 8 9 12 13 No. C 12-5309 WHA (PR) PORFIRIO JUARES, 11 For the Northern District of California United States District Court 10 Petitioner, ORDER OF DISMISSAL; GRANTING LEAVE TO PROCEED IN FORMA PAUPERIS v. C. GIBSON, Warden, 14 Respondents. / (Docket No. 2) 15 16 Petitioner, a California state prisoner, has filed a petition for writ of habeas corpus 17 pursuant to 28 U.S.C. 2254. An application for a federal writ of habeas corpus filed by a 18 prisoner who is in state custody pursuant to a judgment of a state court may not be granted 19 unless the prisoner has first exhausted state judicial remedies, either by way of a direct appeal 20 or in collateral proceedings, by presenting the highest state court available with a fair 21 opportunity to rule on the merits of each and every issue he or she seeks to raise in federal 22 court. See 28 U.S.C. § 2254(b),(c); Granberry v. Greer, 481 U.S. 129, 133-34 (1987). 23 In California, the supreme court, intermediate courts of appeal, and superior courts all 24 have original habeas corpus jurisdiction. See Nino v. Galaza, 183 F.3d 1003, 1006 n.2 (9th Cir. 25 1999). Although a superior court order denying habeas corpus relief is non-appealable, a state 26 prisoner may file a new habeas corpus petition in the court of appeals. See id. If the court of 27 appeals denies relief, the petitioner may seek review in the California Supreme Court by way of 28 a petition for review, or may instead file an original habeas petition in the supreme court. See id. at n.3. 1 Petitioner has the burden of pleading exhaustion in his habeas petition. See Cartwright 2 v. Cupp, 650 F.2d 1103, 1104 (9th Cir. 1981). Petitioner has not done so. He indicates in his 3 petition that he has presented his claims only to the California Court of Appeal (Pet. 3). The 4 referenced attachments bear this out, as they show that he has presented his claims – that his 5 appellate lawyer was ineffective and that he was improperly denied appellate transcripts – only 6 to the California Court of Appeal and not to the California Supreme Court. No appeals or 7 petitions in petitioner’s name appear in the California Supreme Court’s electronic database of 8 cases. To properly exhaust his claims, petitioner must properly raise them in the California 9 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 11 For the Northern District of California United States District Court 10 without prejudice to refiling after available state judicial remedies are exhausted. 12 13 Good cause appearing, petitioner’s application to proceed in forma pauperis (docket number 2) is GRANTED. 14 The clerk shall close the file. 15 IT IS SO ORDERED. 16 17 18 Dated: October 26 , 2012. WILLIAM ALSUP UNITED STATES DISTRICT JUDGE 19 20 21 22 23 24 25 G:\PRO-SE\WHA\HC.12\JUARES5309.DSM-EXH.wpd 26 27 28 2

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