Phillips v. Napa State Hospital

Filing 8

ORDER OF DISMISSAL. Signed by Judge Nathanael Cousins on 7/18/2017. (Attachments: # 1 Certificate/Proof of Service)(lmh, COURT STAFF) (Filed on 7/18/2017)

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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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United States District Court
Northern District of California

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DONALD PHILLIPS,

Case No. 17-cv-01513 NC (PR)

Petitioner,

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ORDER OF DISMISSAL

v.

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NAPA STATE HOSPITAL,
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Respondent.
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Donald Phillips, a California state prisoner proceeding pro se, filed a petition for

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writ of habeas corpus pursuant to 28 U.S.C. § 2254. 1 On May 24, 2017, the Court issued
an order to Petitioner to show cause why the petition should be not be dismissed for failing
to exhaust state court remedies. The Court ordered Petitioner to file a response to this
order to show cause within thirty (30) days of the filing date of this order addressing: (1)
whether he has a habeas petition, appeal, or other post-conviction proceeding now pending

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before the state court; and, if so, (2) which level of state court and whether the underlying
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Petitioner
Docket No. 2.

has

Case No. 17-cv-01513 NC (PR)
ORDER OF DISMISSAL

consented

to

magistrate

judge

jurisdiction.

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petition challenges the same commitment at issue in his pending state case(s). The Court
warned Petitioner that the failure to file a timely response would result in the Court
dismissing the instant petition without prejudice for failure to exhaust state court remedies.
More than thirty days have passed, and Petitioner has not responded, or otherwise
communicated with the Court. Accordingly, Petitioner’s case is DISMISSED without
prejudice. The clerk shall terminate any pending motions and close the file.
The federal rules governing habeas cases brought by state prisoners require a
district court that denies a habeas petition to grant or deny a certificate of appealability
(“COA”) in its ruling. See Rule 11(a), Rules Governing § 2254 Cases, 28 U.S.C. foll. §
2254. Petitioner has not shown “that jurists of reason would find it debatable whether the

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United States District Court
Northern District of California

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district court was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484

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(2000). Accordingly, a COA is DENIED.

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IT IS SO ORDERED.
DATED:

July 18, 2017

NATHANAEL M. COUSINS
United States Magistrate Judge

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Case No. 17-cv-01513 NC (PR)
ORDER OF DISMISSAL