Pina v. The People of the State of California

Filing 2

ORDER Dismissing Petition Without Prejudice and With Leave to Amend: To have this case reopened, Petitioner must, no later than April 7, 2009, file a First Amended Petition which cures the pleading deficiencies outlined in this Order. Signed by Judge Larry Alan Burns on 2/3/09. (All non-registered users served via U.S. Mail Service, Blank First Amended Petition sent w/ order).(pdc)

1 2 3 4 5 6 7 8 9 10 11 12 v. 13 14 15 16 17 18 FAILURE TO NAME PROPER RESPONDENT 19 R ev ie w of the Petition reveals that Petitioner has failed to name a proper respondent. On 20 f e d era l habeas, a state prisoner must name the state officer having custody of him as the 21 re s p o n d e n t. Ortiz-Sandoval v. Gomez, 81 F.3d 891, 894 (9th Cir. 1996) (citing Rule 2(a), 28 22 U .S .C . foll. § 2254). Federal courts lack personal jurisdiction when a habeas petition fails to 23 n a m e a proper respondent. See id. 24 T h e warden is the typical respondent. However, "the rules following section 2254 do not 25 s p e c if y the warden." Id. "[T]he `state officer having custody' may be `either the warden of the 26 in s titu tio n in which the petitioner is incarcerated . . . or the chief officer in charge of state penal 27 in s titu tio n s .'" Id. (quoting Rule 2(a), 28 U.S.C. foll. § 2254 advisory committee's note). If "a 28 -1P e titio n e r, a state prisoner proceeding pro se, has paid the $5.00 filing fee and has filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. THE PEOPLE OF THE STATE OF CALIFORNIA, Respondents. ALFREDO PINA, Petitioner, Civil No. 09-0178 LAB (PCL) UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

ORDER DISMISSING PETITION WITHOUT PREJUDICE AND WITH LEAVE TO AMEND

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p e titio n e r is in custody due to the state action he is challenging, `[t]he named respondent shall b e the state officer who has official custody of the petitioner (for example, the warden of the p ris o n ).'" Id. (quoting Rule 2, 28 U.S.C. foll. § 2254 advisory committee's note). A long standing rule in the Ninth Circuit holds "that a petitioner may not seek [a writ of] h a b e as corpus against the State under . . . [whose] authority . . . the petitioner is in custody. The a c tu a l person who is [the] custodian [of the petitioner] must be the respondent." Ashley v. W a s h in g t o n , 394 F.2d 125, 126 (9th Cir. 1968). This requirement exists because a writ of h a b e as corpus acts upon the custodian of the state prisoner, the person who will produce "the b o d y" if directed to do so by the Court. "Both the warden of a California prison and the Director o f Corrections for California have the power to produce the prisoner." Ortiz-Sandoval, 81 F.3d a t 895. H e re , Petitioner has incorrectly named "The People of the State of California," as R e s p o n d e n t. In order for this Court to entertain the Petition filed in this action, Petitioner must n a m e the warden in charge of the state correctional facility in which Petitioner is presently c o n f i n e d or the Director of the California Department of Corrections. Brittingham v. United S ta te s, 982 F.2d 378, 379 (9th Cir. 1992) (per curiam). FAILURE TO SIGN PETITION In addition, Rule 2(c) of the Rules Governing Section 2254 Cases provides that "[t]he p etitio n shall be typewritten or legibly handwritten and shall be signed under penalty of perjury b y the petitioner." Rule 2(c), 28 U.S.C. foll. § 2254 (emphasis added). Here, Petitioner has f a ile d to sign the Petition and the petition must therefore be dismissed. F A IL U R E TO ALLEGE EXHAUSTION OF STATE JUDICIAL REMEDIES F u r th e r, habeas petitioners who wish to challenge either their state court conviction or the le n g th of their confinement in state prison, must first exhaust state judicial remedies. 28 U.S.C. § 2254(b), (c); Granberry v. Greer, 481 U.S. 129, 133-34 (1987). Ordinarily, to satisfy the e x h a u stio n requirement, a petitioner must "fairly present[] his federal claim to the highest state c o u rt with jurisdiction to consider it . . . or . . . demonstrate[] that no state remedy remains a v a ila b le . Johnson v. Zenon, 88 F.3d 828, 829 (9th Cir. 1996) (citing Picard v. Connor, 404 -2-

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U .S . 270, 275 (1971); Anderson v. Harless, 459 U.S. 4, 6 (1982)). Moreover, to properly e x h a u st state court remedies a petitioner must allege, in state court, how one or more of his or h e r federal rights have been violated. For example, "[i]f a habeas petitioner wishes to claim that a n evidentiary ruling at a state court trial denied him [or her] the due process of law guaranteed b y the Fourteenth Amendment, he [or she] must say so, not only in federal court, but in state c o u rt." See Duncan v. Henry, 513 U.S. 364, 365-66 (1995)(emphasis added). N o w h e re on the Petition does Petitioner allege that he raised his claims in the California S u p re m e Court. In fact, he specifically indicates he did not seek review in the California S u p re m e Court as to claims two, three and four. (See Pet. at 7-9.) If Petitioner has raised his c la im s in the California Supreme Court he must so specify. Further, 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: (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 itia lly 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.A. § 2244(d)(1)(A)-(D) (West Supp. 2002). 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] -3-

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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 a s petition "[i]f it plainly appears from the face of the petition and any exhibits annexed to it that the petitioner is not entitled to relief in the district court . . ." Rule 4, 28 U.S.C. foll. § 2254. Here, it appears plain from the Petition that Petitioner is not presently entitled to federal h a b e a s relief because he has not alleged exhaustion of state court remedies. C O N C L U SIO N F o r the foregoing reasons, the Court DISMISSES the Petition without prejudice and with le a v e to amend. To have this case reopened, Petitioner must, no later than April 7, 2009, file a First Amended Petition which cures the pleading deficiencies outlined in this Order. THE C L E R K OF COURT IS DIRECTED TO MAIL PETITIONER A BLANK FIRST A M E N D E D PETITION FORM WITH A COPY OF THIS ORDER. I T IS SO ORDERED. D A T E D : February 3, 2009

H ONORABLE LARRY ALAN BURNS U n ite d States District Judge

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