Burke v. Gonzales

Filing 7

Order Dismissing Second Amended Petition Without Prejudice and Without Leave to Amend; Signed by Judge Larry Alan Burns on 7/19/10.(All non-registered users served via U.S. Mail Service)(kaj)

- P C L Burke v. Gonzales

Doc. 7

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 April 23, 2010, Petitioner, a state prisoner proceeding pro se, submitted a Petition for 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 t it io 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.) On May 20, 2010, Petitioner filed a First Amended petition along with an application to p ro c e ed in forma pauperis. (Doc. Nos. 3-4.) By Order dated June 2, 2010, this Court granted th e application to proceed in forma pauperis, and dismissed the First Amended Petition because 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. 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

O R D E R DISMISSING SECOND A M E N D E D PETITION WITHOUT P R E J U D IC E AND WITHOUT L E A V E TO AMEND

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P e titio n e r again failed to allege exhaustion of state judicial remedies. Petitioner was notified that h e would be allowed a final opportunity to amend in order to cure this pleading defect no later th a n July 2. On July 6, 2010, Petitioner filed a Second Amended Petition. 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 i te 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 previous Petitions, nowhere in the Second Amended Petition does Petitioner a lle g e that he raised his claims in the California Supreme Court. Rather, Petitioner indicates that h e has not presented claims one through four to the state supreme court. (See Pet. at 6-9.) P e titio n e r was informed in the Court's previous Orders of dismissal that if he has raised his c la im s in the California Supreme Court he must so specify because the burden of proving that a claim has been exhausted lies with Petitioner. Cartwright v. Cupp, 650 F.2d 1103, 1104 (9th C ir. 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,

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i t appears plain from the Second Amended Petition that Petitioner is not presently entitled to f e d e ra l habeas relief because he has not alleged exhaustion of state court remedies. CONCLUSION AND ORDER P e titio n e r was advised in the preceding dismissal Order that if he filed a Second A m e n d e d Petition which failed to cure the deficiencies in his petition, he would be given no f u rth e r opportunities to amend the present case, but would have to begin again by filing a new f e d era l habeas petition which will be given a new civil case number. For all the foregoing re a so n s, the Court DISMISSES this case without prejudice and without leave to amend. IT IS SO ORDERED.

D A T E D : July 19, 2010

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

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