Yu

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA 6 DANIEL YU, Case No. 3:20-cv-06970-JD

Plaintiff,

ORDER RE MOTION TO DISMISS

v. PETITION

ROSEMARY NDOH, Re: Dkt. No. 12 Defendant.

12 Respondent Ndoh has asked to dismiss Yu’s petition for a writ of habeas corpus on grounds that he is in procedural default on two of the three claims for relief. Dkt. No. 12. Yu forthrightly acknowledges that he did not present the two challenged claims to the California Supreme Court, and that his time do so has “long expired.” Dkt. No. 13 at 3. The parties’ familiarity with the record is assumed, and the petition is dismissed with leave to amend. Yu’s sole argument against dismissal is that it would result in a fundamental miscarriage of justice. See Dkt. No. 13 at 3-4. The point is not well taken. An exception to a procedural default based on a potential miscarriage of justice is available only in the limited circumstance when the petitioner presents “new reliable…