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Gardner v. J. Soto

United States District Court, S.D. California

July 18, 2016

RONDEL DELBERT GARDNER, Petitioner,
v.
J. SOTO, Warden Defendant.

          ORDER

          WILLIAM Q. HAYES United States District Judge.

         The matter before the Court is Petitioner's letter requesting a status update. (ECFNo. 12).

         BACKGROUND

         On November 16, 2015, Petitioner filed for Writ of Habeas Corpus in the Central District of California. (ECF No. 1). On November 16, 2015, Petitioner filed Leave to Proceed In Forma Pauperis. (ECF No. 7). On December 7, 2015, Judge Valerie Baker Fairbank transferred Petitioner's Writ of Habeas Corpus from the Central District of California to this Court in the Southern District of California. (ECF No. 4). This Court accepted the case and assigned it case number 15cv2743.

         On December 10, 2015, this Court issued an order denying Petitioner's Motion to Proceed In Forma Pauperis (ECF No. 7) for failing to provide the Court with sufficient information to determine Petitioner's financial status. (ECF No. 8). This Court stated,

A request to proceed in forma pauperis made by a state prisoner must include a certificate from the warden or other appropriate officer showing the amount of money or securities Petitioner has on account in the institution. Rule 3(a)(2), 28 U.S.C- foil. § 2254; Local Rule 3.2. Petitioner has failed to provide the Court with the required Prison Certificate.
Because this Court cannot proceed until Petitioner has either paid the $5.00 filing fee or qualified to proceed in forma pauperis, the Court DISMISSES the case without prejudice. See Rule 3(a), 28 U.S.C. foil. § 2254. If Petitioner wishes to proceed with this case, he must submit, no later than February 8. 2016. a copy of this Order with the $5.00 fee or with adequate proof of his inability to pay the fee.

Id. at 1-2. This Court also dismissed Petitioner's Complaint without prejudice because Petitioner had failed to allege exhaustion of state judicial remedies in his Complaint. This Court stated,

[H]abeas petitioners who wish to challenge either their state court conviction or the length of their confinement in state prison, must first exhaust state judicial remedies. 28 U.S.C. § 2254(b), (c); Cranberry v. Greer. 481 U.S. 129, 133-34 (1987). To exhaust state judicial remedies, a California state prisoner must present the California Supreme Court with a fair opportunity to rule on the merits of every issue raised in his or her federal habeas petition. 28 U.S.C. § 2254(b), (c); Granberry. 481 U.S. at 133-34. Moreover, to properly exhaust state court remedies a petitioner must allege, in state court, how one or more of his or her federal rights have been violated ....

(ECF No. 8 at 2). This Court ordered,

To have this case reopened. Petitioner must, no later than February 8. 2016. pay the $5.00 filing fee or submit adequate proof of his inability to pay the fee, and file a First Amended Petition that cures the pleading deficiencies set forth above. The Clerk of Court shall send Petitioner a blank Southern District of California First Amended Petition form and a blank Southern District of California Motion to Proceed In Forma Pauperis form along with this Order.

Id. at 4.

         On March 1, 2016, Petitioner sent a motion to this Court requesting legal assistance and change of venue. (ECF No. 10). On March 17, 2016, the Court ordered:

IT IS HEREBY ORDERED that Petitioner's Request for legal assistance and change of venue (ECF No. 10) is denied at this stage in the proceedings. Petitioner's action was dismissed without prejudice because Petitioner failed to satisfy the filing fee requirement and failed to allege exhaustion of state judicial remedies. To have this case reopened, Petitioner must, no later than May 16.. 2016. pay the $5.00 filing fee or submit adequate proof of his ...

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