Alejandres v. Grounds

Filing 7

ORDER REOPENING CASE; ORDER TO SHOW CAUSE WHY THE PETITION SHOULD NOT BE DISMISSED. Signed by Judge Richard Seeborg on 4/26/13. (Attachments: # 1 Appendix Certificate of Service)(cl, COURT STAFF) (Filed on 4/26/2013)

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*E-Filed 4/26/13*

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

United States District Court
For the Northern District of California

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SAN FRANCISCO DIVISION

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BONIFACIO ALEJANDRES-SANTOS,

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ORDER REOPENING ACTION;

Petitioner,
v.

ORDER TO SHOW CAUSE WHY
THE PETITION SHOULD NOT BE
DISMISSED

RANDY GROUNDS,

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No. C 13-0406 RS (PR)

Respondent.
/

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This federal habeas corpus action was dismissed because petitioner failed to file a

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complete application to proceed in forma pauperis (“IFP”), or (2) pay the filing fee of $5.00.

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Petitioner has since filed a complete IFP application and a motion to reopen. The motion to

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reopen (Docket No. 5) is GRANTED, the action is hereby REOPENED, and the Clerk is

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directed to amend the docket accordingly. Petitioner’s IFP motion (Docket No. 6) is

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GRANTED. The judgment (Docket No. 3) and the order of dismissal (Docket No. 4) are

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VACATED.

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No. C 13-0406 RS (PR)
ORDER REOPENING ACTION

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Petitioner is ordered to show cause on or before June 1, 2013 why the petition should

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not be dismissed for failure to (1) exhaust his claims in state court, and (2) sign his petition.

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Prisoners in state custody who wish to challenge collaterally in federal habeas proceedings

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either the fact or length of their confinement are first required to exhaust state judicial

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remedies, either on direct appeal or through collateral proceedings, by presenting the highest

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state court available with a fair opportunity to rule on the merits of each and every claim they

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seek to raise in federal court. See 28 U.S.C. § 2254(b), (c); Rose v. Lundy, 455 U.S. 509,

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515–16 (1982). The state’s highest court must be given an opportunity to rule on the claims

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even if review is discretionary. See O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999)

United States District Court
For the Northern District of California

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(petitioner must invoke “one complete round of the State’s established appellate review

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process”). Even though non-exhaustion is an affirmative defense, the petitioner bears the

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burden of proof that state judicial remedies were properly exhausted. Parker v. Kelchner,

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429 F.3d 58, 62 (3d Cir. 2005). If available state remedies have not been exhausted as to all

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claims, the district court must dismiss the petition. See Rose, 455 U.S. at 510. In his

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response to this order, petitioner must state under penalty of perjury which claims he

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has exhausted, if any.

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Petitioner, or his representative, also must address his failure to sign his petition.

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Petitioner’s sister, not petitioner, signed his petition. In the response to this order, petitioner

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or his sister must establish standing to sign on petitioner’s behalf. A person other than the

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detained person may file an application for a writ of habeas corpus and establish standing as

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a “next friend.” Whitmore v. Arkansas, 495 U.S. 149, 163 (1990). A next friend does not

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himself become a party to the habeas petition, “but simply pursues the cause on behalf of the

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detained person, who remains the real party in interest.” Id. There are two firmly rooted

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prerequisites to “next friend” standing. First, a next friend “must provide an adequate

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explanation — such as inaccessibility, mental incompetency, or other disability — why the

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real party in interest cannot appear on his own behalf to prosecute the action.” Second, the

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next friend “must be truly dedicated to the best interests of the person on whose behalf he

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No. C 13-0406 RS (PR)
ORDER REOPENING ACTION

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seeks to litigate and it has been further suggested that a next friend must have some

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significant relationship with the real party in interest.” The purported next friend bears the

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burden “to establish the propriety of his status and thereby justify the jurisdiction of the

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court.” Id. at 163–64 (citations omitted).

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If petitioner fails to file an appropriate response by the above date, the petition

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will be dismissed under Federal Rule of Civil Procedure 41(b) for failure to prosecute.

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The Clerk shall terminate Docket Nos. 5 and 6.

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IT IS SO ORDERED.
DATED: April 26, 2013
RICHARD SEEBORG
United States District Judge

United States District Court
For the Northern District of California

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No. C 13-0406 RS (PR)
ORDER REOPENING ACTION