Weith v. City and County of San Francisco et al

Filing 21

ORDER OF DISMISSAL, ***Civil Case Terminated. Signed by Judge Phyllis J. Hamilton on 9/13/11. (Attachments: # 1 Certificate/Proof of Service)(nah, COURT STAFF) (Filed on 9/13/2011)

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1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 OAKLAND DIVISION 6 7 JAN ALEC WEITH, Petitioner, 8 9 11 For the Northern District of California United States District Court 10 12 No. C 10-5252 PJH (PR) vs. ORDER OF DISMISSAL CITY AND COUNTY OF SAN FRANCISCO; District Attorney KAMELA HARRIS; Sheriff MICHAEL HENNESSY; and SAN FRANCISCO SUPERIOR COURT OF THE STATE OF CALIFORNIA, 13 Respondents. 14 15 / This is a habeas case filed pro se by a former prisoner at the San Francisco County 16 Jail. In response to the question in the form petition “[d]id you appeal your conviction?”, 17 petitioner wrote “not yet” and “no notice of appeal applied for yet.” In response to a 18 question whether he had “previously field any petitions, applications of motion with 19 response to this conviction in any court, state or federal,” petitioner checked the “no” box. 20 In response to an instruction to describe each such proceeding, he did provide answers, 21 but they all were about trial-level proceedings or events at the time of the trial, not collateral 22 proceedings. In the initial review order, the court concluded that he had failed to plead 23 exhaustion and dismissed the petition with leave to amend. See Cartwright v. Cupp, 650 24 F.2d 1103, 1104 (9th Cir. 1981) (habeas petitioners must plead exhaustion). 25 In the same order, petitioner’s motion for leave to proceed in forma pauperis was 26 denied and he was ordered to pay the filing fee within thirty days. Instead of doing so, he 27 attempted to appeal. The court of appeals denied his request to proceed IFP on appeal 28 because the appeal was frivolous and granted him twenty-one days to pay the appellate 1 filing fee. When plaintiff did not pay, the appeal was dismissed. 2 Plaintiff has not shown cause why the petition should not be dismissed for failure to 3 exhaust, and the time to do so has long since expired. He also has not paid the filing fee. 4 This case is DISMISSED. The clerk shall close the file. 5 6 IT IS SO ORDERED. Dated: September 13, 2011. PHYLLIS J. HAMILTON United States District Judge 7 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 P:\PRO-SE\PJH\HC.10\WEITH5252.DSM.wpd 2

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