ORDER granting Leave to Proceed Forma Pauperis and DISMISSING CASE Without Prejudice for Falire to Exhaust. Signed by Judge William H. Alsup on 5/22/2008. (mat, COURT STAFF) (Filed on 5/22/2008)
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Page 1 United States District Court
For the Northern District of California
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Case 3:08-cv-01484-WHA Document 7
Filed 05/22/2008 Page 1 of3
FILED
MAY 22 2008
CLERK, Us. DT
NORTHERN pistR:.:
| COURT
~ “SLIFORNIA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
CHARLES JOHNSON,
Petitioner,
V.
THE STATE OF CALIFORNIA,
Respondent.
No. C 08-1484 WHA (PR)
ORDER GRANTING LEAVE TO
PROCEED IN FORMA PAUPERIS
AND DISMISSING WITHOUT
PREJUDICE FOR FAILURE TO
EXHAUST
Petitioner, a California state inmate, has filed a petition for writ of habeas corpus
pursuant to 28 U.S.C. § 2254. His application for leave to proceed in forma pauperis (document
number 6) is GRANTED.
An application for a federal writ of habeas corpus filed by a prisoner who is in state
custody pursuant to a judgment of a state court may not be granted unless the prisoner has first
exhausted state judicial remedies, either by way of a direct appeal or in collateral proceedings,
by presenting the highest state court available! with a fair opportunity to rule on the merits of
each and every issue he or she seeks to raise in federal court. See 28 U.S.C. § 2254(b),(c);
' In California, the supreme court, intermediate courts of appeal, and superior courts
all have original habeas corpus jurisdiction. See Nino v. Galaza, 183 F.3d 1003, 1006 n.2
(9th Cir. 1999). Although a superior court order denying habeas corpus relief is non-
appealable, a state prisoner may file a new habeas corpus petition in the court of appeals. See
id. If the court of appeals denies relief, the petitioner may seek review in the California
Supreme Court by way of a petition for review, or may instead file an original habeas petition
in the supreme court. See id. at n.3.Page 2 United States District Court
For the Northern District of California
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Case 3:08-cv-01484-WHA Document7 ~ Filed 05/22/2008 Page 2of3
Granberry v. Greer, 481 U.S. 129, 133-34 (1987). Petitioner has the burden of pleading
exhaustion in his habeas petition. See Cartwright v. Cupp, 650 F.2d 1103, 1104 (9th Cir. 1981).
Petitioner here has not pleaded exhaustion; in fact, he affirmatively pleads that he has
not exhausted, in that he says he has not filed any state court case presenting these claims. The
petition therefore is DISMISSED without prejudice to refiling after available state judicial
remedies are exhausted.”
The clerk shall close the file.
IT IS SO ORDERED.
WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE
G:\PRO-SE\WHA\HC.08\JOHNSON1484.DSM-exh.wpd
* Petitioner is cautioned that under the Antiterrorism and Effective Death Penalty Act
of 1996, effective April 24, 1996, petitions filed by prisoners challenging non-capital state
convictions or sentences must be filed within one year of the latest of the date on which: (1)
the judgment became final after the conclusion of direct review or expiration of the time for
seeking direct review; (2) an impediment to filing an application created by unconstitutional
state action was removed, if such action prevented petitioner from filing; (3) the
constitutional right asserted was recognized by the United States Supreme Court, if the right
was newly recognized and made retroactive to cases on collateral review; or (4) the factual
predicate of the claim could have been discovered through the exercise of due diligence. 28
U.S.C. § 2244(d)(1). Time during which a properly filed application for collateral review
(such as a state habeas petition) is pending is excluded from the one-year time limit. /d. §
2244(d)(2).Page 3 Case 3:08-cv-01484-WHA Document7 ~ Filed 05/22/2008 Page 3of3
UNITED STATES DISTRICT COURT
FOR THE
NORTHERN DISTRICT OF CALIFORNIA
CHARLES JOHNSON, Case Number: CV08-01484 WHA
Plaintiff, CERTIFICATE OF SERVICE
v.
STATE OF CA et al,
Defendant.
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 May 23, 2008, ISERVED 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.
Charles Johnson
#T-75115
San Quentin State Prison .
San Quentin, CA 94974 Nl
Dated: May 23, 2008 / ancussl
Richard W. Wieking, Clerk
By: Monica Narcisse, Deputy Clerk
PDF Page 1
PlainSite Cover Page
PDF Page 2
United States District Court
For the Northern District of California
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Case 3:08-cv-01484-WHA Document 7
Filed 05/22/2008 Page 1 of3
FILED
MAY 22 2008
CLERK, Us. DT
NORTHERN pistR:.:
| COURT
~ “SLIFORNIA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
CHARLES JOHNSON,
Petitioner,
V.
THE STATE OF CALIFORNIA,
Respondent.
No. C 08-1484 WHA (PR)
ORDER GRANTING LEAVE TO
PROCEED IN FORMA PAUPERIS
AND DISMISSING WITHOUT
PREJUDICE FOR FAILURE TO
EXHAUST
Petitioner, a California state inmate, has filed a petition for writ of habeas corpus
pursuant to 28 U.S.C. § 2254. His application for leave to proceed in forma pauperis (document
number 6) is GRANTED.
An application for a federal writ of habeas corpus filed by a prisoner who is in state
custody pursuant to a judgment of a state court may not be granted unless the prisoner has first
exhausted state judicial remedies, either by way of a direct appeal or in collateral proceedings,
by presenting the highest state court available! with a fair opportunity to rule on the merits of
each and every issue he or she seeks to raise in federal court. See 28 U.S.C. § 2254(b),(c);
' In California, the supreme court, intermediate courts of appeal, and superior courts
all have original habeas corpus jurisdiction. See Nino v. Galaza, 183 F.3d 1003, 1006 n.2
(9th Cir. 1999). Although a superior court order denying habeas corpus relief is non-
appealable, a state prisoner may file a new habeas corpus petition in the court of appeals. See
id. If the court of appeals denies relief, the petitioner may seek review in the California
Supreme Court by way of a petition for review, or may instead file an original habeas petition
in the supreme court. See id. at n.3.
PDF Page 3
United States District Court
For the Northern District of California
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Case 3:08-cv-01484-WHA Document7 ~ Filed 05/22/2008 Page 2of3
Granberry v. Greer, 481 U.S. 129, 133-34 (1987). Petitioner has the burden of pleading
exhaustion in his habeas petition. See Cartwright v. Cupp, 650 F.2d 1103, 1104 (9th Cir. 1981).
Petitioner here has not pleaded exhaustion; in fact, he affirmatively pleads that he has
not exhausted, in that he says he has not filed any state court case presenting these claims. The
petition therefore is DISMISSED without prejudice to refiling after available state judicial
remedies are exhausted.”
The clerk shall close the file.
IT IS SO ORDERED.
WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE
G:\PRO-SE\WHA\HC.08\JOHNSON1484.DSM-exh.wpd
* Petitioner is cautioned that under the Antiterrorism and Effective Death Penalty Act
of 1996, effective April 24, 1996, petitions filed by prisoners challenging non-capital state
convictions or sentences must be filed within one year of the latest of the date on which: (1)
the judgment became final after the conclusion of direct review or expiration of the time for
seeking direct review; (2) an impediment to filing an application created by unconstitutional
state action was removed, if such action prevented petitioner from filing; (3) the
constitutional right asserted was recognized by the United States Supreme Court, if the right
was newly recognized and made retroactive to cases on collateral review; or (4) the factual
predicate of the claim could have been discovered through the exercise of due diligence. 28
U.S.C. § 2244(d)(1). Time during which a properly filed application for collateral review
(such as a state habeas petition) is pending is excluded from the one-year time limit. /d. §
2244(d)(2).
PDF Page 4
Case 3:08-cv-01484-WHA Document7 ~ Filed 05/22/2008 Page 3of3
UNITED STATES DISTRICT COURT
FOR THE
NORTHERN DISTRICT OF CALIFORNIA
CHARLES JOHNSON, Case Number: CV08-01484 WHA
Plaintiff, CERTIFICATE OF SERVICE
v.
STATE OF CA et al,
Defendant.
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 May 23, 2008, ISERVED 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.
Charles Johnson
#T-75115
San Quentin State Prison .
San Quentin, CA 94974 Nl
Dated: May 23, 2008 / ancussl
Richard W. Wieking, Clerk
By: Monica Narcisse, Deputy Clerk
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