Moreno v. Lewis

Filing 12

ORDER by Judge James Donato granting 10 Motion to Dismiss; granting 11 Motion to Dismiss (lrcS, COURT STAFF) (Filed on 8/6/2014)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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RUDY MORENO,

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Case No. 13-cv-03848-JD

Plaintiff,
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v.

ORDER DISMISSING CASE

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GREG D. LEWIS,

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Re: Dkt. Nos. 10, 11

Defendant.

United States District Court
Northern District of California

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This is a habeas case brought pro se by a state prisoner under 28 U.S.C. § 2254. Petitioner

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challenges an administrative decision while he has been incarcerated that denied him time credits.

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Respondent has filed a motion to dismiss on the grounds that the claims have not been exhausted

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and the petition is barred by the statute of limitations. Petitioner has filed a response conceding

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that the claims in the petition were not exhausted in state court and seeks to dismiss the case

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without prejudice. The case will be therefore dismissed for failure to exhaust.1

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CONCLUSION

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1.

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DISMISSED for failure to exhaust.
2.

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The motions to dismiss (Docket Nos. 10, 11) are GRANTED and this case is

A certificate of appealability will not issue because this is not a case in which

“jurists of reason would find it debatable whether the petition states a valid claim of the denial of a

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While it does appear that this petition is untimely, the Court will not address that issue as
petitioner did not respond to the argument or present any reasons for tolling.

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constitutional right and that jurists of reason would find it debatable whether the district court was

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correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000).

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IT IS SO ORDERED.
Dated: August 5, 2014
______________________________________
JAMES DONATO
United States District Judge

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United States District Court
Northern District of California

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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RUDY MORENO,

Case No. 13-cv-03848-JD

Plaintiff,
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v.

CERTIFICATE OF SERVICE

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GREG D. LEWIS,
Defendant.

United States District Court
Northern District of California

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I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S.
District Court, Northern District of California.
That on 8/6/2014, 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 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.

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Rudy Moreno
Pelican Bay State Prison
P.O. Box 7500
Crescent City, CA 95532

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Dated: 8/6/2014

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Richard W. Wieking
Clerk, United States District Court

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By:________________________
LISA R. CLARK, Deputy Clerk to the
Honorable JAMES DONATO

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