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Dynes v. Valenzuela

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA
Jun 12, 2015
No. C 15-0496 RMW (PR) (N.D. Cal. Jun. 12, 2015)

Opinion

No. C 15-0496 RMW (PR)

06-12-2015

JOHN RAY DYNES, Petitioner, v. ELVIN VALENZUELA, Warden, Respondent.


ORDER DENYING LEAVE TO PROCEED IN FORMA PAUPERIS; ORDER TO SHOW CAUSE WHY PETITION SHOULD NOT BE DISMISSED FOR FAILURE TO EXHAUST STATE REMEDIES (Docket Nos. 3, 5)

Petitioner, a California state prisoner proceeding pro se, seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner has submitted a Certificate of Funds, signed by an authorized officer, that indicates that petitioner had an average monthly balance of $ 100.00 for the past six months, and an average monthly deposit of $ 6.95 in his inmate trust account. Thus, petitioner's motions for leave to proceed in forma pauperis are DENIED.

Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Elvin Valenzuela, the current warden of the California Men's Colony State Prison, where petitioner is currently incarcerated, is hereby SUBSTITUTED as respondent.

The court issues an order to show cause for petitioner to demonstrate why the petition should not be dismissed without prejudice because he has not exhausted his state court remedies.

BACKGROUND

In the underlying federal petition, petitioner challenges the criminal judgment he sustained in 2001 in the Superior Court of Alameda County by raising the claim that Proposition 47 should apply to reduce his convictions and sentence. Petitioner concedes that he has not raised any claims in the California Supreme Court.

DISCUSSION

Prisoners in state custody who wish to collaterally challenge either the fact or length of their confinement in federal habeas corpus proceedings are first required to exhaust state judicial remedies, either on direct appeal or through collateral proceedings, by presenting the highest state court available with a fair opportunity to rule on the merits of each and every claim they seek to raise in federal court. 28 U.S.C. § 2254(b)-(c).

At the time petitioner filed this federal petition, petitioner acknowledged that he has not filed any state habeas petitions in the California Court of Appeal or the California Supreme Court. Thus, the court issues an order to show cause for petitioner to demonstrate why the petition should not be dismissed without prejudice to refiling once he exhausts his federal claims in state court.

CONCLUSION

Petitioner's motions to proceed IFP are DENIED. Petitioner must pay the $5 filing fee within thirty (30) days of the date of this order or face dismissal of this action for failure to pay the filing fee.

Petitioner shall 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 or other post-conviction proceeding now pending before the state court raising the underlying claim; and, if so, (2) which level of state court, and whether the underlying petition challenges the same commitment at issue in his pending state case(s). Failure to file a timely response will result in the court dismissing the instant petition without prejudice for failure to exhaust state court remedies.

It is petitioner's responsibility to prosecute this case. Petitioner must keep the court and all parties informed of any change of address by filing a separate paper captioned "Notice of Change of Address." He must comply with the court's orders in a timely fashion. Failure to do so may result in the dismissal of this action for failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b).

IT IS SO ORDERED. DATED: 6/12/15

/s/_________

RONALD M. WHYTE

United States District Judge

CERTIFICATE OF SERVICE

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 June 12, 2015, 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. John Ray Dynes AT1595
CMC-WEST
California Men's Colony State Prison
Post Office Box 8108
San Luis Obispo, CA 93409-8101

Richard W. Wieking, Clerk

By: Jackie Lynn Garcia, Deputy Clerk


Summaries of

Dynes v. Valenzuela

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA
Jun 12, 2015
No. C 15-0496 RMW (PR) (N.D. Cal. Jun. 12, 2015)
Case details for

Dynes v. Valenzuela

Case Details

Full title:JOHN RAY DYNES, Petitioner, v. ELVIN VALENZUELA, Warden, Respondent.

Court:UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

Date published: Jun 12, 2015

Citations

No. C 15-0496 RMW (PR) (N.D. Cal. Jun. 12, 2015)