Cardenas

Filing 3

ORDER OF DISMISSAL; GRANTING MOTION for Leave to Proceed in forma pauperis.. Signed by Judge JEFFREY S. WHITE on 3/1/13. (jjoS, COURT STAFF) (Filed on 3/1/2013)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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For the Northern District of California

United States District Court

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ORDER OF DISMISSAL;
GRANTING LEAVE TO
PROCEED IN FORMA PAUPERIS

Petitioner,

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No. C 13-0253 JSW (PR)

DANNY CARDENAS, JR.,

v.
WARDEN,

(Docket No. 2)

Respondents.

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Petitioner, a prisoner of the State of California proceeding pro se, has twice

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previously had his federal habeas petitions dismissed for failure to exhaust his state court

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remedies because he indicated that he had not sought review of his conviction in the

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California Supreme Court. Petitioner has filed a third habeas petition, and once again has

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indicated that his claims have not been presented to the California Supreme Court. (Pet.

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at 3.)

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As has been explained to Petitioner twice previously, this Court may not consider

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his claims until he has properly exhausted his claims by presenting them to the California

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Supreme Court. See 28 U.S.C. § 2254(b),(c); Granberry v. Greer, 481 U.S. 129, 133-34

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(1987). He has not presented any exceptional circumstances to excuse his failure to

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exhaust. See id. at 134. Accordingly, the petition is DISMISSED without prejudice to

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filing a new federal petition if he does not obtain relief after properly presenting his

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claims to the California Supreme Court.

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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 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.

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McDaniel, 529 U.S. 473, 484 (2000). Consequently, no certificate of appealability is

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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 2).
IT IS SO ORDERED.
DATED: March 1, 2013
JEFFREY S. WHITE
United States District Judge

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For the Northern District of California

United States District Court

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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 JR,

Case Number: CV13-00253 JSW

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Plaintiff,

CERTIFICATE OF SERVICE

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v.
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WARDEN,
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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.
12 District Court, Northern District of California.
13 That on March 1, 2013, 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
14 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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17 Danny Cardenas G-36254
M.C.S.P.
18 P.O. Box 409020
#G36254
19 Ione, CA 95640
20 Dated: March 1, 2013
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Richard W. Wieking, Clerk
By: Jennifer Ottolini, Deputy Clerk