Williams v. Sandor

Filing 3

ORDER granting 2 application to Proceed in forma pauperis and dismissing without prejudice for failure to allege exhaustion of state court remedies. If Petitioner wishes to proceed with this matter, he must file a First Amended Petition which alleges exhaustion of state court remedies on or before May 28, 2010. Signed by Judge Dana M. Sabraw on 3/30/2010. (All non-registered users served via U.S. Mail Service)(tkl)

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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 v. GARY SANDOR, Warden, Respondent. P e titio n e r, a state prisoner proceeding pro se, has submitted a Petition for a Writ of H a b e as Corpus pursuant to 28 U.S.C. § 2254, together with a request to proceed in forma p a u p e ris . Petitioner has $0.04 on account at the California correctional institution in which he is presently confined. Petitioner cannot afford the $5.00 filing fee. Thus, the Court GRANTS P e titio n e r's application to proceed in forma pauperis, and allows Petitioner to prosecute the a b o v e -re f ere n c ed action as a poor person without being required to prepay fees or costs and w ith o u t being required to post security. However, review of the Petition indicates that is it subject to dismissal without prejudice b ec au se Petitioner has failed to allege exhaustion of state court remedies. Habeas petitioners w h o wish to challenge either their state court conviction or the length of their confinement in s ta te prison, must first exhaust state judicial remedies. 28 U.S.C. § 2254(b), (c); Granberry v. G re e r, 481 U.S. 129, 133-34 (1987). To exhaust state judicial remedies, a California state p riso n e r must present the California Supreme Court with a fair opportunity to rule on the merits REGINALD R. WILLIAMS, Petitioner, ORDER GRANTING APPLICATION TO PROCEED IN FORMA PAUPERIS AND DISMISSING PETITION WITHOUT PREJUDICE Civil No. 10cv0665-DMS (WVG) UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA K : \ C O M M O N \ E V E R Y O N E \ _ E F I L E - P R O S E \D M S \1 0 c v 0 6 6 5 - G r a n t& D i s m i s s .w p d , 3 3 0 1 0 -1- 10cv0665 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 f every issue raised in his or her federal habeas petition. 28 U.S.C. § 2254(b), (c); Granberry, 4 8 1 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. The Supreme C o u rt in Duncan v. Henry, 513 U.S. 364 (1995) reasoned: "If state courts are to be given the o p p o rtu n ity to correct alleged violations of prisoners' federal rights, they must surely be alerted to the fact that the prisoners are asserting claims under the United States Constitution." Id. at 3 6 5 -6 6 (emphasis added). For example, "[i]f a habeas petitioner wishes to claim that an e v id e n tia ry ruling at a state court trial denied him [or her] the due process of law guaranteed by th e Fourteenth Amendment, he [or she] must say so, not only in federal court, but in state court." Id. at 366 (emphasis added). H ere , Petitioner has not indicated whether he has exhausted state judicial remedies. If P e titio n e r has raised his claims in the California Supreme Court he must so specify. The burden o f pleading that a claim has been exhausted lies with the petitioner. Cartwright v. Cupp, 650 F .2 d 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: (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 i n 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 2006). K : \ C O M M O N \ E V E R Y O N E \ _ E F I L E - P R O S E \D M S \1 0 c v 0 6 6 5 - G r a n t& D i s m i s s .w p d , 3 3 0 1 0 -2- 10cv0665 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 C o p ie s to: 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 en 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 t h 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 r e lie f because he has not alleged exhaustion of state court remedies. C O N C L U S IO N AND ORDER B a se d on the foregoing, Petitioner's application to proceed in forma pauperis is G R A N T E D . The Petition is DISMISSED without prejudice for failure to allege exhaustion of s ta te court remedies. If Petitioner wishes to proceed with this matter, he must file a First A m e n d e d Petition which alleges exhaustion of state court remedies on or before May 28, 2010. P etitio n er is cautioned that if he has not alleged exhaustion of his state court remedies before M a y 28, 2010, and still wishes to pursue his habeas claims in this Court, he will be required to start over by filing a new federal habeas petition which will be given a new civil case number. I T IS SO ORDERED. D A T E D : March 30, 2010 H O N . DANA M. SABRAW U n ite d States District Judge A L L PAR T I E S K : \ C O M M O N \ E V E R Y O N E \ _ E F I L E - P R O S E \D M S \1 0 c v 0 6 6 5 - G r a n t& D i s m i s s .w p d , 3 3 0 1 0 -3- 10cv0665

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