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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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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OAKLAND DIVISION

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JAN ALEC WEITH,
Petitioner,

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For the Northern District of California

United States District Court

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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,

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Respondents.
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/
This is a habeas case filed pro se by a former prisoner at the San Francisco County

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Jail. In response to the question in the form petition “[d]id you appeal your conviction?”,

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petitioner wrote “not yet” and “no notice of appeal applied for yet.” In response to a

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question whether he had “previously field any petitions, applications of motion with

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response to this conviction in any court, state or federal,” petitioner checked the “no” box.

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In response to an instruction to describe each such proceeding, he did provide answers,

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but they all were about trial-level proceedings or events at the time of the trial, not collateral

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proceedings. In the initial review order, the court concluded that he had failed to plead

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exhaustion and dismissed the petition with leave to amend. See Cartwright v. Cupp, 650

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F.2d 1103, 1104 (9th Cir. 1981) (habeas petitioners must plead exhaustion).

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In the same order, petitioner’s motion for leave to proceed in forma pauperis was

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denied and he was ordered to pay the filing fee within thirty days. Instead of doing so, he

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attempted to appeal. The court of appeals denied his request to proceed IFP on appeal

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because the appeal was frivolous and granted him twenty-one days to pay the appellate

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filing fee. When plaintiff did not pay, the appeal was dismissed.

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Plaintiff has not shown cause why the petition should not be dismissed for failure to

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exhaust, and the time to do so has long since expired. He also has not paid the filing fee.

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This case is DISMISSED. The clerk shall close the file.

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IT IS SO ORDERED.
Dated: September 13, 2011.
PHYLLIS J. HAMILTON
United States District Judge

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For the Northern District of California

United States District Court

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P:\PRO-SE\PJH\HC.10\WEITH5252.DSM.wpd

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