Cardenas

Filing 4

ORDER OF DISMISSAL; GRANTING 3 MOTION for Leave to Proceed in forma pauperis. Signed by Judge JEFFREY S. WHITE on 12/14/12. (jjoS, COURT STAFF) (Filed on 12/19/2012)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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v.

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For the Northern District of California

United States District Court

ORDER OF DISMISSAL;
GRANTING LEAVE TO
PROCEED IN FORMA PAUPERIS

Petitioner,

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No. C 12-5562 JSW (PR)

DANNY CARDENAS, JR.,

WARDEN,
(Docket No. 3)

Respondents.

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INTRODUCTION

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Petitioner, a prisoner of the State of California, has filed a habeas corpus petition

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challenging the constitutionality of his conviction in the state courts. He previously filed

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a petition (Case No. C 12-2141 JSW) that was dismissed without prejudice for failure to

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exhaust his state court remedies as Petitioner indicated in his petition that he had not

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sought review of his conviction in the California Supreme Court. Petitioner states once

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again in his petition that he has not sought review of his conviction or sentence in the

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California Supreme Court. Accordingly, the petition is DISMISSED without prejudice

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to filing a new federal petition once all claims have been exhausted. This order also

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grants Petitioner’s motion to proceed in forma pauperis (docket number 3).
DISCUSSION

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I

Standard of Review
This court may entertain a petition for a writ of habeas corpus “in behalf of a

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person in custody pursuant to the judgment of a State court only on the ground that he is

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in custody in violation of the Constitution or laws or treaties of the United States.” 28
U.S.C. § 2254(a).

It shall “award the writ or issue an order directing the respondent to show cause

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why the writ should not be granted, unless it appears from the application that the

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applicant or person detained is not entitled thereto.” Id. § 2243.

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II

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

granted unless the prisoner has first exhausted state judicial remedies, either by way of a

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direct appeal or in collateral proceedings, by presenting the highest state court available

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with a fair opportunity to rule on the merits of each and every issue he or she seeks to

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raise in federal court. See 28 U.S.C. § 2254(b),(c); Granberry v. Greer, 481 U.S. 129,

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For the Northern District of California

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

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United States District Court

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133-34 (1987).

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In California, the supreme court, intermediate courts of appeal, and superior

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courts all have original habeas corpus jurisdiction. See Nino v. Galaza, 183 F.3d 1003,

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1006 n.2 (9th Cir. 1999). Although a superior court order denying habeas corpus relief

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is non-appealable, a state prisoner may file a new habeas corpus petition in the court of

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appeals. See id. If the court of appeals denies relief, the petitioner may seek review in

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the California Supreme Court by way of a petition for review, or may instead file an

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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

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Cartwright v. Cupp, 650 F.2d 1103, 1104 (9th Cir. 1981). He states in his petition that

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he has not sought review of his conviction or sentence in the California Supreme Court.

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To properly exhaust his claims, Petitioner must properly present them to the California

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Supreme Court. He has not presented any exceptional circumstances to excuse his

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failure to exhaust. See Granberry, 481 U.S. at 134. Petitioner indicates that his appeal

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to the California Court of Appeal was denied as untimely. Petitioner does not explain

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why he was precluded from filing a petition for review of the Court of Appeal’s decision

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in the California Supreme Court, or alternatively filing his claims in a habeas petition in

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the California Supreme Court. The petition will therefore be dismissed without
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prejudice to refiling after available state judicial remedies are exhausted.

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CONCLUSION

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For the foregoing reasons and for good cause shown the petition for a writ of

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habeas corpus is DISMISSED without prejudice.
Rule 11(a) of the Rules Governing Section 2254 Cases now requires a district

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court to rule on whether a Petitioner is entitled to a certificate of appealability in the same

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order in which the petition is decided. Petitioner has failed to make a substantial showing

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that his claims amounted to a denial of his constitutional rights or demonstrate that a

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reasonable jurist would find this Court's denial of his claim debatable or wrong. Slack v.
McDaniel, 529 U.S. 473, 484 (2000). Consequently, no certificate of appealability is

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For the Northern District of California

United States District Court

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warranted in this case

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In light of Petitioner’s lack of funds, his application for leave to proceed in forma
pauperis is GRANTED (docket number 3).
IT IS SO ORDERED.
DATED: December 14, 2012
JEFFREY S. WHITE
United States District Judge

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UNITED STATES DISTRICT COURT

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FOR THE

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NORTHERN DISTRICT OF CALIFORNIA

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DANNY CARDENAS,

Case Number: CV12-05562 JSW

Plaintiff,

CERTIFICATE OF SERVICE

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v.
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WARDEN et al,
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Defendant.
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For the Northern District of California

United States District Court

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I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District
Court, Northern District of California.
That on December 19, 2012, I SERVED a true and correct copy(ies) of the attached, by placing
said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by
depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office
delivery receptacle located in the Clerk's office.

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Danny Cardenas G-36254
M.C.S.P.
P.O. Box 409020
#G36254
Ione, CA 95640

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Dated: December 19, 2012

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Richard W. Wieking, Clerk
By: Jennifer Ottolini, Deputy Clerk