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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1 2 3 4 5 IN THE UNITED STATES DISTRICT COURT 6 FOR THE NORTHERN DISTRICT OF CALIFORNIA 7 8 v. 10 For the Northern District of California United States District Court ORDER OF DISMISSAL; GRANTING LEAVE TO PROCEED IN FORMA PAUPERIS Petitioner, 9 11 No. C 12-5562 JSW (PR) DANNY CARDENAS, JR., WARDEN, (Docket No. 3) Respondents. 12 / 13 INTRODUCTION 14 Petitioner, a prisoner of the State of California, has filed a habeas corpus petition 15 16 challenging the constitutionality of his conviction in the state courts. He previously filed 17 a petition (Case No. C 12-2141 JSW) that was dismissed without prejudice for failure to 18 exhaust his state court remedies as Petitioner indicated in his petition that he had not 19 sought review of his conviction in the California Supreme Court. Petitioner states once 20 again in his petition that he has not sought review of his conviction or sentence in the 21 California Supreme Court. Accordingly, the petition is DISMISSED without prejudice 22 to filing a new federal petition once all claims have been exhausted. This order also 23 grants Petitioner’s motion to proceed in forma pauperis (docket number 3). DISCUSSION 24 25 26 I Standard of Review This court may entertain a petition for a writ of habeas corpus “in behalf of a 27 person in custody pursuant to the judgment of a State court only on the ground that he is 28 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 1 2 why the writ should not be granted, unless it appears from the application that the 3 applicant or person detained is not entitled thereto.” Id. § 2243. 4 II 5 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 8 direct appeal or in collateral proceedings, by presenting the highest state court available 9 with a fair opportunity to rule on the merits of each and every issue he or she seeks to 10 raise in federal court. See 28 U.S.C. § 2254(b),(c); Granberry v. Greer, 481 U.S. 129, 11 For the Northern District of California state custody pursuant to a judgment of a state court, such as petitioner, may not be 7 United States District Court 6 133-34 (1987). 12 In California, the supreme court, intermediate courts of appeal, and superior 13 courts all have original habeas corpus jurisdiction. See Nino v. Galaza, 183 F.3d 1003, 14 1006 n.2 (9th Cir. 1999). Although a superior court order denying habeas corpus relief 15 is non-appealable, a state prisoner may file a new habeas corpus petition in the court of 16 appeals. See id. If the court of appeals denies relief, the petitioner may seek review in 17 the California Supreme Court by way of a petition for review, or may instead file an 18 original habeas petition in the supreme court. See id. at n.3. 19 Petitioner has the burden of pleading exhaustion in his habeas petition. See 20 Cartwright v. Cupp, 650 F.2d 1103, 1104 (9th Cir. 1981). He states in his petition that 21 he has not sought review of his conviction or sentence in the California Supreme Court. 22 To properly exhaust his claims, Petitioner must properly present them to the California 23 Supreme Court. He has not presented any exceptional circumstances to excuse his 24 failure to exhaust. See Granberry, 481 U.S. at 134. Petitioner indicates that his appeal 25 to the California Court of Appeal was denied as untimely. Petitioner does not explain 26 why he was precluded from filing a petition for review of the Court of Appeal’s decision 27 in the California Supreme Court, or alternatively filing his claims in a habeas petition in 28 the California Supreme Court. The petition will therefore be dismissed without 2 1 prejudice to refiling after available state judicial remedies are exhausted. 2 CONCLUSION 3 For the foregoing reasons and for good cause shown the petition for a writ of 4 5 habeas corpus is DISMISSED without prejudice. Rule 11(a) of the Rules Governing Section 2254 Cases now requires a district 6 court to rule on whether a Petitioner is entitled to a certificate of appealability in the same 7 order in which the petition is decided. Petitioner has failed to make a substantial showing 8 that his claims amounted to a denial of his constitutional rights or demonstrate that a 9 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 11 For the Northern District of California United States District Court 10 warranted in this case 12 13 14 15 16 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 17 18 19 20 21 22 23 24 25 26 27 28 3 1 UNITED STATES DISTRICT COURT 2 FOR THE 3 NORTHERN DISTRICT OF CALIFORNIA 4 5 DANNY CARDENAS, Case Number: CV12-05562 JSW Plaintiff, CERTIFICATE OF SERVICE 6 7 v. 8 WARDEN et al, 9 Defendant. 11 For the Northern District of California United States District Court 10 12 13 14 / 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. 15 16 19 Danny Cardenas G-36254 M.C.S.P. P.O. Box 409020 #G36254 Ione, CA 95640 20 Dated: December 19, 2012 17 18 21 22 23 24 25 26 27 28 Richard W. Wieking, Clerk By: Jennifer Ottolini, Deputy Clerk

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