Garcia Millan v. Hernandez

Filing 5

ORDER Dismissing Case Without Prejudice: First Amended Petition is DISMISSED without further leave to amend. However, the dismissal is without prejudice to Petitioner to present his claims in a separate habeas petition, which willbe given a new civil case number, if and when he exhausts his state court remedies. Signed by Judge M. James Lorenz on 9/9/2008. (All non-registered users served via U.S. Mail Service).(mjj)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 O n July 2, 2008, Petitioner, a state prisoner proceeding pro se, has filed a Petition for a W rit of Habeas Corpus pursuant to 28 U.S.C. § 2254. On July 8, 2008, the Court dismissed the a c tio n because Petitioner had failed to satisfy the filing fee requirement and had failed to allege e x h a u s tio n of state judicial remedies. The Court notified Petitioner that, in order to have his case re o p e n e d , he must, by September 8, 2008, (1) pay the filing fee or provide adequate proof of his in a b ility to pay and (2) file a First Amended Petition curing the pleading deficiencies outlined in the July 8, 2008 Order. Petitioner was also cautioned that, if he was unable to allege e x h a u stio n of state judicial remedies by September 8, 2008, his case would be dismissed without le a v e to amend and that and he would have to start over by filing a new case under a new case n u m b e r. /// ///
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U N IT E D STATES DISTRICT COURT S O U T H E R N DISTRICT OF CALIFORNIA

L E O N A R D O GARCIA MILLAN, P e t i t io n e r , v. H E R N A N D E Z , Warden, R e sp o n d e n t.

C i v i l No.

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O R D E R DISMISSING CASE WITHOUT PREJUDICE

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O n August 28, 2008, Petitioner paid the filing fee and filed a First Amended Petition. R e v ie w of the First Amended Petition reveals that Petitioner has again failed to allege e x h a u stio n of state court remedies. As discussed in this Court's July 8, 2008 Order, habeas p e titio n e rs who wish to challenge either their state court conviction or the length of their co n fin em en t in state prison, must first exhaust state judicial remedies. 28 U.S.C. § 2254(b), (c); G r a n b e rr y v. Greer, 481 U.S. 129, 133-34 (1987). To exhaust state judicial remedies, a C a lifo rn ia 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 p e titio n e r must allege, in state court, how one or more of his or her federal rights have been v io la te d . The Supreme Court in Duncan v. Henry, 513 U.S. 364 (1995) reasoned: "If state c o u r ts are to be given the opportunity to correct alleged violations of prisoners' federal rights, th e y must surely be alerted to the fact that the prisoners are asserting claims under the United S ta te s Constitution." Id. at 365-66 (emphasis added). For example, "[i]f a habeas petitioner w is h e s to claim that an evidentiary ruling at a state court trial denied him [or her] the due process o f law guaranteed by the Fourteenth Amendment, he [or she] must say so, not only in federal c o u rt, but in state court." Id. at 366 (emphasis added). H ere , Petitioner has not indicated that he has exhausted state judicial remedies. Nowhere in the Petition does Petitioner allege that he raised his claims in the California Supreme Court. In fact, Petitioner specifically states that he has not raised these claims before the state supreme c o u r t. (Pet. at 6-9.) If Petitioner has raised his claims in the California Supreme Court he must so specify. The burden of pleading that a claim has been exhausted lies with the petitioner. C a r tw r ig h t v. Cupp, 650 F.2d 1103, 1104 (9th Cir. 1981). F u rth e r, the Court cautions Petitioner that under the Antiterrorism and Effective Death P e n a lty Act of 1996 (AEDPA) a one-year period of limitation shall apply to a petition for a writ o f habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation p e rio d shall run from the latest of: ///
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(A ) the date on which the judgment became final by the c o n c lu s io n of direct review or the expiration of the time for seeking s u c h review; (B ) the date on which the impediment to filing an application c re a te d by State action in violation of the Constitution or laws of the U n ite d States is removed, if the applicant was prevented from filing b y such State action; (C ) the date on which the constitutional right asserted was in iti a ll y recognized by the Supreme Court, if the right has been n e w ly recognized by the Supreme Court and made retroactively a p p lic a b le to cases on collateral review; or (D ) the date on which the factual predicate of the claim or c la im s presented could have been discovered through the exercise o f due diligence. 2 8 U.S.C. § 2244(d)(1)(A)-(D) (West 2006). T h e statute of limitations does not run while a properly filed state habeas corpus petition is pending. 28 U.S.C. § 2244(d)(2); see Nino v. Galaza, 183 F.3d 1003, 1006 (9th Cir. 1999). B u t see Artuz v. Bennett, 531 U.S. 4, 8 (2000) (holding that "an application is `properly filed' w h e n its delivery and acceptance [by the appropriate court officer for placement into the record] a re in compliance with the applicable laws and rules governing filings."). However, absent some o th e r basis for tolling, the statute of limitations does run while a federal habeas petition is p e n d in g . Duncan v. Walker, 533 U.S. 167, 181-82 (2001). R u le 4 of the Rules Governing Section 2254 Cases provides for summary dismissal of a h a b e as petition "[i]f it plainly appears from the face of the petition and any attached exhibits that th e petitioner is not entitled to relief in the district court . . ." Rule 4, 28 U.S.C. foll. § 2254. H e re , it appears plain from the Petition that Petitioner is not presently entitled to federal habeas re lie f because he has not alleged exhaustion of state court remedies. Further, it is now clear that P e titio n e r is unable to allege exhaustion of his state court remedies at this time. Therefore, the F ir st Amended Petition is DISMISSED without further leave to amend. However, the dismissal /// /// /// ///
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is without prejudice to Petitioner to present his claims in a separate habeas petition, which will b e given a new civil case number, if and when he exhausts his state court remedies. C O N C L U SIO N F o r the foregoing reasons, the Court DISMISSES this case without prejudice and without f u rth e r leave to amend. If Petitioner wishes to proceed with this claims, he may file a new h a b e a s petition, which will be given a new civil case number, if and when he exhausts his state c o u r t remedies. I T IS SO ORDERED.

D A T E D : September 9, 2008 M . James Lorenz U n ite d States District Court Judge

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