Laverriere v. State of California

Filing 8

ORDER OF DISMISSAL; GRANTING LEAVE TO PROCEED IN FORMA PAUPERIS. Signed by Judge Jon S. Tigar on June 6, 2013. (Attachments: # 1 Certificate/Proof of Service)(wsn, COURT STAFF) (Filed on 6/7/2013)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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GUS GERARD LAVERRIERE,

Case No. 13-cv-01660-JST (PR)

Petitioner,
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v.
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STATE OF CALIFORNIA,
Respondent.

ORDER OF DISMISSAL; GRANTING
LEAVE TO PROCEED IN FORMA
PAUPERIS
Re: Dkt. No. 2

United States District Court
Northern District of California

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Petitioner, a California state prisoner, has filed a petition for writ of habeas corpus

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pursuant to 28 U.S.C. § 2254, challenging a February 2009 conviction and sentence in the Santa

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Cruz Superior Court. Petitioner filed this action in the Eastern District of California which

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transferred it to this Court on April 12, 2013. He has also filed an application for leave to proceed

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in forma pauperis ("IFP").

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

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custody pursuant to a judgment of a state court may not be granted unless the prisoner has first

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exhausted state judicial remedies, either by way of a direct appeal or in collateral proceedings, by

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presenting the highest state court available with a fair opportunity to rule on the merits of each and

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every issue he or she seeks to raise in federal court. See 28 U.S.C. § 2254(b),(c); Granberry v.

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Greer, 481 U.S. 129, 133-34 (1987).

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

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original habeas corpus jurisdiction. See Nino v. Galaza, 183 F.3d 1003, 1006 n.2 (9th Cir. 1999).

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Although a superior court order denying habeas corpus relief is non-appealable, a state prisoner

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may file a new habeas corpus petition in the court of appeals. See id. If the court of appeals

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denies relief, the petitioner may seek review in the California Supreme Court by way of a petition

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for review, or may instead file an 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 Cartwright v.

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Cupp, 650 F.2d 1103, 1104 (9th Cir. 1981). Petitioner has not done so. He indicates in his

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petition that he has not presented his claims, either on direct appeal or in a petition for habeas

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relief, to the California Supreme Court. (Pet. 3-4.) To exhaust his claims, petitioner must

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properly raise them in the California Supreme Court. Petitioner has also not presented any

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exceptional circumstances to excuse his failure to exhaust. See Granberry, 481 U.S. at 134. The

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petition is therefore DISMISSED without prejudice to refiling after available state judicial

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United States District Court
Northern District of California

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remedies are exhausted.
Good cause appearing, petitioner’s application to proceed IFP (docket number 2) is
GRANTED.

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The Clerk shall close the file.

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IT IS SO ORDERED.

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Dated: June 6, 2013
______________________________________
JON S. TIGAR
United States District Judge

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