Morales v. State of California

Filing 3

ORDER denying 2 In Forma Pauperis Application and Dismissing Case without Prejudice. To have the case reopened, Petitioner must, no later than 9/19/2011, (1) pay the filing fee or provide adequate proof of his inability to pay and (2) file a First Amended Petition which cures the pleading deficiencies outlined in this Order. Signed by Judge Irma E. Gonzalez on 7/26/2011. (Per Order: A blank In Forma Pauperis Application and blank First Amended Petition form were sent to petitioner) (All non-registered users served via U.S. Mail Service)(aef)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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FELIPE MORALES,

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11-1531 IEG (POR)

Petitioner,

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Civil No.

ORDER DENYING IN FORMA
PAUPERIS APPLICATION AND
DISMISSING CASE WITHOUT
PREJUDICE

v.
STATE OF CALIFORNIA,

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Respondent.

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Petitioner, a state prisoner proceeding pro se, has not paid the $5.00 filing fee and has

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filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254, together with a request

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to proceed in forma pauperis pursuant to 28 U.S.C. § 1915(a).
REQUEST TO PROCEED IN FORMA PAUPERIS

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The request to proceed in forma pauperis is denied because Petitioner has not provided

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the Court with sufficient information to determine Petitioner’s financial status. A request to

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proceed in forma pauperis made by a state prisoner must include a certificate from the warden

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or other appropriate officer showing the amount of money or securities Petitioner has on account

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in the institution. Rule 3(a)(2), 28 U.S.C. foll. § 2254; Local Rule 3.2. Petitioner has failed to

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provide the Court with the required Prison Certificate.

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FAILURE TO NAME A PROPER RESPONDENT

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Review of the Petition reveals that Petitioner has failed to name a proper respondent. On federal

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habeas, a state prisoner must name the state officer having custody of him as the respondent.

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Ortiz-Sandoval v. Gomez, 81 F.3d 891, 894 (9th Cir. 1996) (citing Rule 2(a), 28 U.S.C. foll.

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§ 2254). Federal courts lack personal jurisdiction when a habeas petition fails to name a proper

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respondent. See id.

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The warden is the typical respondent. However, “the rules following section 2254 do not

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specify the warden.” Id. “[T]he ‘state officer having custody’ may be ‘either the warden of the

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institution in which the petitioner is incarcerated . . . or the chief officer in charge of state penal

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institutions.’” Id. (quoting Rule 2(a), 28 U.S.C. foll. § 2254 advisory committee’s note). If “a

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petitioner is in custody due to the state action he is challenging, ‘[t]he named respondent shall

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be the state officer who has official custody of the petitioner (for example, the warden of the

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prison).’” Id. (quoting Rule 2, 28 U.S.C. foll. § 2254 advisory committee’s note).

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A long standing rule in the Ninth Circuit holds “that a petitioner may not seek [a writ of]

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habeas corpus against the State under . . . [whose] authority . . . the petitioner is in custody. The

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actual person who is [the] custodian [of the petitioner] must be the respondent.” Ashley v.

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Washington, 394 F.2d 125, 126 (9th Cir. 1968). This requirement exists because a writ of

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habeas corpus acts upon the custodian of the state prisoner, the person who will produce “the

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body” if directed to do so by the Court. “Both the warden of a California prison and the Director

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of Corrections for California have the power to produce the prisoner.” Ortiz-Sandoval, 81 F.3d

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at 895.

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Here, Petitioner has incorrectly name “State of California” as Respondent. In order for

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this Court to entertain the Petition filed in this action, Petitioner must name the warden in charge

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of the state correctional facility in which Petitioner is presently confined or the Secretary of the

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California Department of Corrections and Rehabilitation. Brittingham v. United States, 982 F.2d

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378, 379 (9th Cir. 1992) (per curiam).

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FAILURE TO ALLEGE EXHAUSTION OF STATE JUDICIAL REMEDIES

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Further, habeas petitioners who wish to challenge either their state court conviction or the length

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of their confinement in state prison, must first exhaust state judicial remedies. 28 U.S.C.

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§ 2254(b), (c); Granberry v. Greer, 481 U.S. 129, 133-34 (1987). To exhaust state judicial

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remedies, a California state prisoner must present the California Supreme Court with a fair

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opportunity to rule on the merits of every issue raised in his or her federal habeas petition. 28

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U.S.C. § 2254(b), (c); Granberry, 481 U.S. at 133-34. Moreover, to properly exhaust state court

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remedies a petitioner must allege, in state court, how one or more of his or her federal rights

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have been violated. The Supreme Court in Duncan v. Henry, 513 U.S. 364 (1995) reasoned:

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“If state courts are to be given the opportunity to correct alleged violations of prisoners’ federal

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rights, they must surely be alerted to the fact that the prisoners are asserting claims under the

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United States Constitution.” Id. at 365-66 (emphasis added). For example, “[i]f a habeas

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petitioner wishes to claim that an evidentiary ruling at a state court trial denied him [or her] the

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due process of law guaranteed by the Fourteenth Amendment, he [or she] must say so, not only

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in federal court, but in state court.” Id. at 366 (emphasis added).

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Nowhere on the Petition does Petitioner allege that he raised his claims in the California

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Supreme Court. In fact, he specifically indicates he did not seek review in the California

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Supreme Court. (See Pet. at 6.) If Petitioner has raised his claims in the California Supreme

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Court he must so specify. “The burden of proving that a claim has been exhausted lies with the

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petitioner.” Matthews v. Evatt, 105 F.3d 907, 911 (4th Cir. 1997); see Breard v. Pruett, 134 F.3d

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615, 619 (4th Cir. 1998); Lambert v. Blackwell, 134 F.3d 506, 513 (3d Cir. 1997); Oyler v.

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Allenbrand, 23 F.3d 292, 300 (10th Cir. 1994); Rust v. Zent, 17 F.3d 155, 160 (6th Cir. 1994).

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Further, the Court cautions Petitioner that under the Antiterrorism and Effective Death

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Penalty Act of 1996 (AEDPA) a one-year period of limitation shall apply to a petition for a writ

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of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation

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period shall run from the latest of:

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(A) the date on which the judgment became final by the
conclusion of direct review or the expiration of the time for seeking
such review;
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(B) the date on which the impediment to filing an application
created by State action in violation of the Constitution or laws of the
United States is removed, if the applicant was prevented from filing
by such State action;

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(C) the date on which the constitutional right asserted was
initially recognized by the Supreme Court, if the right has been
newly recognized by the Supreme Court and made retroactively
applicable to cases on collateral review; or

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(D) the date on which the factual predicate of the claim or
claims presented could have been discovered through the exercise
of due diligence.

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28 U.S.C. § 2244(d)(1)(A)-(D) (West 2006).

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The statute of limitations does not run while a properly filed state habeas corpus petition

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is pending. 28 U.S.C. § 2244(d)(2); see Nino v. Galaza, 183 F.3d 1003, 1006 (9th Cir. 1999).

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But see Artuz v. Bennett, 531 U.S. 4, 8 (2000) (holding that “an application is ‘properly filed’

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when its delivery and acceptance [by the appropriate court officer for placement into the record]

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are in compliance with the applicable laws and rules governing filings.”). However, absent some

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other basis for tolling, the statute of limitations does run while a federal habeas petition is

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pending. Duncan v. Walker, 533 U.S. 167, 181-82 (2001).

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Rule 4 of the Rules Governing Section 2254 Cases provides for summary dismissal of a

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habeas petition “[i]f it plainly appears from the face of the petition and any exhibits annexed to

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it that the petitioner is not entitled to relief in the district court . . .” Rule 4, 28 U.S.C. foll.

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§ 2254. Here, it appears plain from the Petition that Petitioner is not presently entitled to federal

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habeas relief because he has not alleged exhaustion of state court remedies.

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CONCLUSION

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Accordingly, the Court DENIES the request to proceed in forma pauperis, and

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DISMISSES the case without prejudice for failure to satisfy the filing fee requirement, failure

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to name a proper respondent and failure to allege exhaustion of state judicial remedies. To have

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the case reopened, Petitioner must, no later than September 19, 2011, (1) pay the filing fee or

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provide adequate proof of his inability to pay and (2) file a First Amended Petition which cures

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the pleading deficiencies outlined in this Order. For Petitioner’s convenience, the Clerk of

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Court shall attach to this Order a blank In Forma Pauperis Application and a blank First

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Amended Petition form.

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IT IS SO ORDERED.
DATED: July 26, 2011

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IRMA E. GONZALEZ, Chief Judge
United States District Court

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