Cardenas v. Warden

— 1 — — 2 — — 3 — 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA — 6 — 7 ANTONIO DAMIAN CARDENAS, Case No. 21-cv-02584-HSG 8 Petitioner, ORDER DENYING REQUEST FOR TRANSFER; DISMISSING ACTION; 9 v. DENYING CERTIFICATE OF APPEALABILITY 10 MARK ESSICK, et al., Re: Dkt. No. 15 11 Respondents. — 12 — 13 Petitioner, an inmate at Sonoma County Main Adult Detention Facility, filed this pro se 14 action seeking a writ of habeas corpus. On May 25, 2021, the Court ordered Petitioner to show 15 cause by June 22, 2021, why the action should not be dismissed for failure to exhaust state court 16 remedies as required by 28 U.S.C. § 2254 (b). Dkt. No. 13. On June 9, 2021, Petitioner filed a 17 pleading requesting that this petition be transferred to the California Supreme Court. Dkt. No. 15. 18 Petitioner’s request is DENIED. 19 DISCUSSION 20 I. Request for Transfer and Dismissal of Action 21 Petitioner’s request to transfer his federal court habeas petition to state court is DENIED 22 because a federal court action cannot be “transferred” to state court. If Petitioner seeks to 23 commence an action in state court, such as the California Supreme Court, he must file a new 24 action in state court. 25 Because Petitioner’s request to transfer indicates that Petitioner has not exhausted his state 26 court remedies, the Court DISMISSES this petition for a writ of habeas corpus for failure to 27 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 2 || of California must be given at least one opportunity to review state prisoners’ federal claims). The 3 dismissal is without prejudice to filing a new petition after state judicial remedies are exhausted. 4 I. Certificate of Appealability 5 No certificate of appealability is warranted in this case. See Rule 11(a) of the Rules 6 || Governing § 2254 Cases, 28 U.S.C. foll. § 2254 (requiring district court to rule on certificate of 7 || appealability in same order that denies petition). Petitioner has not shown “that jurists of reason 8 || would find it debatable whether the petition states a valid claim of the denial of a constitutional 9 || right and that jurists of reason would find it debatable whether the district court was correct in its 10 || procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). 11 CONCLUSION 12 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 14 || state judicial remedies are exhausted, and DENIES a certificate of appealability. 3 15 This order terminates Dkt. No. 15. 16 IT IS SO ORDERED. i 17 || Dated: 6/21/2021 18 Z Maepurerd 3 . Mdl_)). HAYWOOD S. GILLIAM, JR. 19 United States District Judge — 20 — — 21 — — 22 — — 23 — — 24 — — 25 — — 26 — — 27 — — 28 —