Burke v. Gonzales

Filing 2

ORDER Dismissing Case Without Prejudice: If Petitioner wishes to proceed with this case, he must submit, no later than July 2, 2010, a copy of this Order with the $5.00 fee or with adequate proof of his inability to pay the fee, and a First Amended Petition in conformance with this Order. Signed by Judge Larry Alan Burns on 5/5/10.(Blank 1st Amended Petition and blank IFP application sent to Petitioner with copy of Order)(pdc)(mam).

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 TERRI GONZALES, Respondent. P e titio n e r, a state prisoner proceeding pro se, has filed a Petition for Writ of Habeas C o rp u s pursuant to 28 U.S.C. § 2254. F A IL U R E TO SATISFY FILING FEE REQUIREMENT P e titio n e r has failed to pay the $5.00 filing fee and has failed to move to proceed in forma p a u p e ris . Because this Court cannot proceed until Petitioner has either paid the $5.00 filing fee o r qualified to proceed in forma pauperis, the Court DISMISSES the case without prejudice. S e e Rule 3(a), 28 U.S.C. foll. § 2254. If Petitioner wishes to proceed with this case, he must s u b m it, no later than July 2, 2010, a copy of this Order with the $5.00 fee or with adequate p ro o f of his inability to pay the fee. FAILURE TO NAME A PROPER RESPONDENT R ev ie w of the Petition reveals that Petitioner has failed to name a proper respondent. On f e d era l habeas, a state prisoner must name the state officer having custody of him as the 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 v. CARL BURKE, Petitioner, ORDER DISMISSING CASE WITHOUT PREJUDICE Civil No. 10-0927 LAB (PCL) UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

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U .S .C . foll. § 2254). Federal courts lack personal jurisdiction when a habeas petition fails to n a m e a proper respondent. See id. T h e warden is the typical respondent. However, "the rules following section 2254 do not s p e c if y the warden." Id. "[T]he `state officer having custody' may be `either the warden of the in s titu tio n in which the petitioner is incarcerated . . . or the chief officer in charge of state penal in s titu tio n s .'" Id. (quoting Rule 2(a), 28 U.S.C. foll. § 2254 advisory committee's note). If "a 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 to 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 "Terri Gonzales," as Respondent. In order for this C o u rt to entertain the Petition filed in this action, Petitioner must name the warden in charge of th e state correctional facility in which Petitioner is presently confined or the Director of the C a lif o rn ia Department of Corrections. Brittingham v. United States, 982 F.2d 378, 379 (9th Cir. 1 9 9 2 ) (per curiam). FAILURE TO STATE A COGNIZABLE FEDERAL CLAIM A d d itio n a lly, in accordance with Rule 4 of the rules governing § 2254 cases, Petitioner h a s failed to allege that his state court conviction or sentence violates the Constitution of the U n ite d States. Title 28, United States Code, § 2254(a), sets forth the following scope of review f o r federal habeas corpus claims: T h e Supreme Court, a Justice thereof, a circuit judge, or a district c o u rt shall entertain an application for a writ of habeas corpus in
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b e h a lf of a person in custody pursuant to the judgment of a State c o u rt only on the ground that he is in custody in violation of the C o n s titu t io n or laws or treaties of the United States. 2 8 U.S.C. § 2254(a) (emphasis added). See Hernandez v. Ylst, 930 F.2d 714, 719 (9th Cir. 1 9 9 1 ); Mannhalt v. Reed, 847 F.2d 576, 579 (9th Cir. 1988); Kealohapauole v. Shimoda, 800 F .2 d 1463, 1464-65 (9th Cir. 1986). Thus, to present a cognizable federal habeas corpus claim u n d e r § 2254, a state prisoner must allege both that he is in custody pursuant to a "judgment of a State court," and that he is in custody in "violation of the Constitution or laws or treaties of the U n ite d States." See 28 U.S.C. § 2254(a). Here, Petitioner asks "the mercy of the courts" to reduce his sentence. (Pet. at 3.) In no w a y does Petitioner claim he is "in custody in violation of the Constitution or laws or treaties of th e United States." 28 U.S.C. § 2254. F A IL U R E TO ALLEGE EXHAUSTION OF STATE JUDICIAL REMEDIES F u r th e r, the Court notes that Petitioner cannot simply amend his Petition to state a federal h a b e as claim and then refile the amended petition in this case. He must exhaust state judicial re m e d ie s before bringing his claims via federal habeas. State prisoners who wish to challenge their state court conviction must first exhaust state judicial remedies. 28 U.S.C. § 2254(b), (c); G r a n b e r r 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 ru le on the merits of every issue raised in his or her federal habeas petition. See 28 U.S.C. § 2254(b), (c); Granberry, 481 U.S. at 133-34. Moreover, to properly exhaust state court judicial re m e d ies a petitioner must allege, in state court, how one or more of his or her federal rights h a v e been violated. The Supreme Court in Duncan v. Henry, 513 U.S. 364 (1995) reasoned: " If state courts are to be given the opportunity to correct alleged violations of prisoners' federal rig h ts , they must surely be alerted to the fact that the prisoners are asserting claims under the U n ite d States Constitution." Id. at 365-66 (emphasis added). For example, "[i]f a habeas p e titio n e r wishes to claim that an evidentiary ruling at a state court trial denied him the due p r o c e s s of law guaranteed by the Fourteenth Amendment, he must say so, not only in federal c o u rt, but in state court." Id. (emphasis added). -3-

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N o w h e re on the Petition does Petitioner allege that he raised his claims in the California S u p r e m e Court. If Petitioner has raised his claims in the California Supreme Court he must so s p e c if y. "The burden of proving that a claim has been exhausted lies with the petitioner." M a tth e w s v. Evatt, 105 F.3d 907, 911 (4th Cir. 1997); see Breard v. Pruett, 134 F.3d 615, 619 (4 th Cir. 1998); Lambert v. Blackwell, 134 F.3d 506, 513 (3d Cir. 1997); Oyler v. Allenbrand, 2 3 F.3d 292, 300 (10th Cir. 1994); Rust v. Zent, 17 F.3d 155, 160 (6th Cir. 1994). A d d itio n a lly, the Court cautions Petitioner that under the Antiterrorism and Effective D e a th Penalty Act of 1996 (Act), signed into law on April 24, 1996, a one-year period of lim ita tio n shall apply to a petition for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period 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. § 2244(d)(1)(A)-(D) (West Supp. 2002). T h e Court also notes that the statute of limitations does not run while a properly filed state h a b e a s corpus petition is pending. 28 U.S.C. § 2244(d)(2); see Nino v. Galaza, 183 F.3d 1003, 1 0 0 6 (9th Cir. 1999). But see Artuz v. Bennett, 531 U.S. 4, 8 (2000) (holding that "an a p p lic a tio n is `properly filed' when its delivery and acceptance [by the appropriate court officer f o r placement into the record] are in compliance with the applicable laws and rules governing f ilin g s." ). However, absent some other basis for tolling, the statute of limitations does run while a federal habeas petition is pending. Duncan v. Walker, 533 U.S. 167, 181-82 (2001). /// -4-

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C O N C L U SIO N A c c o rd in g ly, the Court DISMISSES the Petition without prejudice due to Petitioner's f a ilu re to satisfy the filing fee requirement, failure to name a proper respondent, failure to state a cognizable federal claim and failure to allege exhaustion of state judicial remedies. To have th is case reopened, Petitioner must file a First Amended Petition no later than July 2, 2010 in c o n f o rm a n c e with this Order. For Petitioner's convenience, the Clerk of Court shall attach to this Order a blank First Amended Petition form and a blank Southern District of California In F o r m a Pauperis Application. I T IS SO ORDERED. 5-5-10 D A T E D : _______________________ _________________________________________ L a r ry Alan Burns U n ite d States District Judge

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