Martinez v. Spearman

Filing 6

ORDER DISMISSING CASE. Signed by Judge William H. Alsup on 9/24/13. (Attachments: # 1 Certificate of Service)(tlS, COURT STAFF) (Filed on 9/25/2013)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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No. C 13-3655 WHA (PR)

LUIS MARTINEZ,

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For the Northern District of California

United States District Court

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Petitioner,

ORDER OF DISMISSAL

v.
MARION E. SPEARMAN, Warden,

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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. An application for a federal writ of habeas corpus filed by a

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prisoner who is in state custody pursuant to a judgment of a state court may not be granted

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unless the prisoner has first exhausted state judicial remedies, either by way of a direct appeal

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or in collateral proceedings, by presenting the highest state court available with a fair

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opportunity to rule on the merits of each and every issue he or she seeks to raise in federal

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court. See 28 U.S.C. § 2254(b),(c); Granberry v. 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

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

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1999). Although a superior court order denying habeas corpus relief is non-appealable, a state

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

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

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a petition 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

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v. 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 raised his claim in “any state court” (Pet. 6). He claims that this is

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because the federal court “retains jurisdiction” over his claim in which he purports to seek

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enforcement of an order issued by Judge Henderson in Case No. C 01-1351 TEH. If he seeks

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enforcement of an order in that case, he must seek relief via counsel in that case, not in a

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separate petition filed in a new case. If he believes that the legal conclusions reached in that

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case support a valid claim for relief for him, he must properly present such a claim to the

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California Supreme Court. Petitioner has also not presented any exceptional circumstances to
excuse his failure to exhaust. See Granberry, 481 U.S. at 134. The petition is therefore

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For the Northern District of California

United States District Court

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DISMISSED without prejudice to refiling after available state judicial remedies are exhausted.

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The clerk shall close the file.

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IT IS SO ORDERED.

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Dated: September

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, 2013.

WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE

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