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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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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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.
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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. The petition was dismissed for failure to exhaust state court

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remedies, see 28 U.S.C. § 2254(b),(c), because petitioner stated that he had not presented his

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claims to “any” state court. His subsequent motion “for exhaustion exemption and motion for

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expedited federal action” (dkt. 8), construed as a motion for reconsideration, was denied

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because petitioner did not present exceptional circumstances to excuse his failure to exhaust.

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Petitioner has filed two identical for reconsideration directed to the United States Court of

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Appeals for the Ninth Circuit seeking “remand” of the case to the District Court to consider the

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petition on its merits. The motions (dkt. 10, 11) are construed as a notice of appeal and a

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request for a certificate of appealability. So construed, a certificate of appealability is DENIED

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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

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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.

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Dated: January

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, 2014.

WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE

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For the Northern District of California

United States District Court

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