Cardenas v. Warden

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

ANTONIO DAMIAN CARDENAS, Case No. 21-cv-02584-HSG

Petitioner, ORDER DENYING REQUEST FOR

TRANSFER; DISMISSING ACTION; v. DENYING CERTIFICATE OF

APPEALABILITY

MARK ESSICK, et al.,

Re: Dkt. No. 15

Respondents.

Petitioner, an inmate at Sonoma County Main Adult Detention Facility, filed this pro se action seeking a writ of habeas corpus. On May 25, 2021, the Court ordered Petitioner to show cause by June 22, 2021, why the action should not be dismissed for failure to exhaust state court remedies as required by 28 U.S.C. § 2254(b). Dkt. No. 13. On June 9, 2021, Petitioner filed a pleading requesting that this petition be transferred to the California Supreme Court. Dkt. No. 15. Petitioner’s request is DENIED.

DISCUSSION

I. Request for Transfer and Dismissal of Action

Petitioner’s request to transfer his federal court habeas petition to state court is DENIED because a federal court action cannot be “transferred” to state court. If Petitioner seeks to commence an action in state court, such as the California Supreme Court, he must file a new action in state court.

Because Petitioner’s request to transfer indicates that Petitioner has not exhausted his state court remedies, the Court DISMISSES this petition for a writ of habeas corpus for failure to exhaust state court remedies as required by 28 U.S.C. § 2254(b). See O’Sullivan v. Boerckel, 526 ] review 1s discretionary); Larche v. Simons, 53 F.3d 1068, 1071-72 (9th Cir. 1995) (Supreme Court of California must be given at least one opportunity to review state prisoners’ federal claims). The dismissal is without prejudice to filing a new petition after state judicial remedies are exhausted. I. Certificate of Appealability

No certificate of appealability is warranted in this case. See Rule 11(a) of the Rules Governing § 2254 Cases, 28 U.S.C. foll. § 2254 (requiring district court to rule on certificate of appealability in same order that denies petition). Petitioner has not shown “that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000).

CONCLUSION

For the reasons set forth above, the Court DENIES the request for transfer (Dkt. No. 15), 13 DISMISSES the petition for a writ of habeas corpus without prejudice to filing a new petition after state judicial remedies are exhausted, and DENIES a certificate of appealability.

15 This order terminates Dkt. No. 15.

16 IT IS SO ORDERED. i 17 || Dated: 6/21/2021

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HAYWOOD S. GILLIAM, JR.

United States District Judge