Burke v. Gonzales

Filing 5

ORDER Granting 4 Application to Proceed In Forma Pauperis and Dismissing First Amended Petition Without Prejudice: If Petitioner wishes to proceed with this action he must file a Second Amended Petition on or before July 2, 2010. Signed by Judge Larry Alan Burns on 5/27/10. (2nd Amended Petition mailed to Petitioner with copy of order)(pdc)

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 a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254, but neither paid the filing fee nor filed a motion to proceed in forma pauperis. (Doc. No. 1.) On May 6, 2010, this Court dismissed the P e titio n because Petitioner had failed to satisfy the filing fee requirement, had failed named a p ro p e r respondent, had failed to state a cognizable federal claim, and had failed to allege e x h a u stio n of state court remedies. (Doc. No. 2.) Petitioner was notified that in order to have h is case reopened he was required to either pay the filing fee or submit an application to proceed in forma pauperis and file a First Amended Petition which cured the pleading defects on or b ef o re July 2, 2010. (Id.) Petitioner has now filed a First Amended petition along with an application to proceed in forma pauperis. (Doc. Nos. 3-4.) Although the Court grants the application to proceed in f o rm a pauperis, the First Amended Petition is subject to dismissal because Petitioner has once v. T E R R I GONZALES, et al., R e s p o n d e n ts . C A R L BURKE, P e titio n e r, C i v i l No. ORDER: (1 ) GRANTING APPLICATION TO P R O C E E D IN FORMA PAUPERIS; AND 1 0 c v 0 9 2 7 - L A B (PCL) U N IT E D STATES DISTRICT COURT S O U T H E R N DISTRICT OF CALIFORNIA

(2 ) DISMISSING FIRST AMENDED P E T I T IO N WITHOUT PREJUDICE O n April 23, 2010, Petitioner, a state prisoner proceeding pro se, submitted a Petition for

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 \L A B \ 1 0 c v 0 9 2 7 - D is m i s s 2 .w p d , 6 2 1 0

-1-

10cv0927

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

a g a in failed to allege exhaustion of state judicial remedies. Petitioner will be allowed a final o p p o rtu n ity to amend in order to cure this pleading defect. M O T I O N TO PROCEED IN FORMA PAUPERIS P e titio n e r has no funds 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. FAILURE TO ALLEGE EXHAUSTION OF STATE JUDICIAL REMEDIES H a b e a s petitioners who wish to challenge either their state court conviction or the length o f 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). To exhaust state judicial re m e d ies , a California state prisoner must present the California Supreme Court with a fair o p p o rtu n ity 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 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 [or her] the d u e process of law guaranteed by the Fourteenth Amendment, he [or she] must say so, not only in federal court, but in state court." Id. at 366 (emphasis added). A s with his original Petition, nowhere in the First Amended Petition does Petitioner allege th a t he raised his claims in the California Supreme Court. Rather, Petitioner indicates that he h a s not presented claims one and four to the state supreme court, and is silent regarding whether h e has presented claims two and three to that court. (See Pet. at 6-9.) Petitioner was informed in the Court's previous Order of dismissal that if he has raised his claims in the 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 \L A B \ 1 0 c v 0 9 2 7 - D is m i s s 2 .w p d , 6 2 1 0

-2-

10cv0927

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

S u p r e m e Court he must so specify because the burden of proving that a claim has been ex h au sted lies with Petitioner. Cartwright v. Cupp, 650 F.2d 1103, 1104 (9th Cir. 1981). 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 petition and any attached exhibits that the p e titio n e r is not entitled to relief in the district court . . ." Rule 4, 28 U.S.C. foll. § 2254. Here, it appears plain from the First Amended 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. CONCLUSION AND ORDER B a se d on the forgoing, the Court GRANTS Petitioner's motion to proceed in forma p a u p e ris and DISMISSES the First Amended Petition due to Petitioner's failure to allege e x h a u s tio n of state judicial remedies. If Petitioner wishes to proceed with this action he must f ile a Second Amended Petition which cures this pleading defect on or before July 2, 2010. P etitio n er is cautioned that if he fails to allege exhaustion of state judicial remedies on or before th a t date, and he still wishes to pursue his claims in this Court on federal habeas, he will be req u ired to file a new habeas petition which will be given a new civil case number. I T IS SO ORDERED.

D A T E D : May 27, 2010

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

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 \L A B \ 1 0 c v 0 9 2 7 - D is m i s s 2 .w p d , 6 2 1 0

-3-

10cv0927