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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1 2 3 4 5 IN THE UNITED STATES DISTRICT COURT 6 FOR THE NORTHERN DISTRICT OF CALIFORNIA 7 8 For the Northern District of California United States District Court 11 ORDER OF DISMISSAL; GRANTING LEAVE TO PROCEED IN FORMA PAUPERIS Petitioner, 9 10 No. C 13-0253 JSW (PR) DANNY CARDENAS, JR., v. WARDEN, (Docket No. 2) Respondents. 12 / 13 14 Petitioner, a prisoner of the State of California proceeding pro se, has twice 15 previously had his federal habeas petitions dismissed for failure to exhaust his state court 16 remedies because he indicated that he had not sought review of his conviction in the 17 California Supreme Court. Petitioner has filed a third habeas petition, and once again has 18 indicated that his claims have not been presented to the California Supreme Court. (Pet. 19 at 3.) 20 As has been explained to Petitioner twice previously, this Court may not consider 21 his claims until he has properly exhausted his claims by presenting them to the California 22 Supreme Court. See 28 U.S.C. § 2254(b),(c); Granberry v. Greer, 481 U.S. 129, 133-34 23 (1987). He has not presented any exceptional circumstances to excuse his failure to 24 exhaust. See id. at 134. Accordingly, the petition is DISMISSED without prejudice to 25 filing a new federal petition if he does not obtain relief after properly presenting his 26 claims to the California Supreme Court. 27 28 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 1 that his claims amounted to a denial of his constitutional rights or demonstrate that a 2 reasonable jurist would find this Court's denial of his claim debatable or wrong. Slack v. 3 McDaniel, 529 U.S. 473, 484 (2000). Consequently, no certificate of appealability is 4 warranted in this case. 5 6 7 8 9 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 11 For the Northern District of California United States District Court 10 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 1 UNITED STATES DISTRICT COURT 2 FOR THE 3 NORTHERN DISTRICT OF CALIFORNIA 4 5 DANNY CARDENAS JR, Case Number: CV13-00253 JSW 6 Plaintiff, CERTIFICATE OF SERVICE 7 v. 8 WARDEN, 9 Defendant. / 11 For the Northern District of California United States District Court 10 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. 15 16 17 Danny Cardenas G-36254 M.C.S.P. 18 P.O. Box 409020 #G36254 19 Ione, CA 95640 20 Dated: March 1, 2013 21 22 23 24 25 26 27 28 Richard W. Wieking, Clerk By: Jennifer Ottolini, Deputy Clerk

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