Martinez v. Spearman

Filing 12

ORDER DENYING CERTIFICATE OF APPEALABILITY; MOTIONS CONSTRUED AS NOTICE OF APPEAL; INSTRUCTIONS TO CLERK by Judge William Alsup, denying 10 Motion for Reconsideration ; denying 11 Motion for Reconsideration (Attachments: # 1 Certificate/Proof of Service) (dt, COURT STAFF) (Filed on 1/15/2014) Modified on 1/15/2014 (dtmS, COURT STAFF).

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1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE NORTHERN DISTRICT OF CALIFORNIA 11 For the Northern District of California United States District Court 10 12 13 14 15 16 No. C 13-3655 WHA (PR) LUIS MARTINEZ, ORDER DENYING CERTIFICATE OF APPEALABILITY; INSTRUCTIONS TO CLERK Petitioner, v. MARION E. SPEARMAN, Warden, (Dkt. Nos. 10, 11) Respondents. / 17 18 Petitioner, a California state prisoner, has filed a petition for writ of habeas corpus 19 pursuant to 28 U.S.C. 2254. The petition was dismissed for failure to exhaust state court 20 remedies, see 28 U.S.C. § 2254(b),(c), because petitioner stated that he had not presented his 21 claims to “any” state court. His subsequent motion “for exhaustion exemption and motion for 22 expedited federal action” (dkt. 8), construed as a motion for reconsideration, was denied 23 because petitioner did not present exceptional circumstances to excuse his failure to exhaust. 24 Petitioner has filed two identical for reconsideration directed to the United States Court of 25 Appeals for the Ninth Circuit seeking “remand” of the case to the District Court to consider the 26 petition on its merits. The motions (dkt. 10, 11) are construed as a notice of appeal and a 27 request for a certificate of appealability. So construed, a certificate of appealability is DENIED 28 because petitioner has not made a substantial showing that a reasonable jurist would find the dismissal of his petition on exhaustion grounds debatable or wrong. Slack v. McDaniel, 529 1 2 3 4 U.S. 473, 484 (2000). The clerk shall process the appeal and forward a copy of this order to the United States Court of Appeals. IT IS SO ORDERED. 5 6 7 Dated: January 14 , 2014. WILLIAM ALSUP UNITED STATES DISTRICT JUDGE 8 9 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

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