Kassab v. People of the State of CA

Filing 5

ORDER DISMISSING CASE Without Prejudice And With Leave To Amend: To have this case reopened, Petitioner must, no later than 7/23/2013: (1) pay the $5.00 filing fee OR submit adequate proof of his inability to pay the fee; AND (2) file a First Amended Petition. Signed by Judge William Q. Hayes on 5/20/2013. (All non-registered users served via U.S. Mail Service; per Order, a blank IFP motion form and a blank 2254 First Amended Petition form also were mailed to Petitioner.) (mdc)

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FILED

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MAY 2 0 2013

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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STEVE KASSAB,

Civil
No.

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Petitioner,

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v.
UNKNOWN, Warden

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13-1162 WQH (RBB)

ORDER DISMISSING CASE
WITHOUT PREJUDICE AND
WITH LEAVE TO AMEND

Respondent.

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Petitioner, a state prisoner proceeding pro se, has filed a Petition for Writ of

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Habeas Corpus pursuant to 28 U.S.C. § 2254.
FAILURE TO SATISFY FILING FEE REQUIREMENT

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Petitioner has failed to pay the $5.00 filing fee and has failed to move to proceed

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in forma pauperis. This Court cannot proceed until Petitioner has either paid the $5.00

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filing fee or qualified to proceed in forma pauperis. See Rule 3(a), 28 U.S.C. foIl. §

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2254.

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FAILURE TO NAME PROPER RESPONDENT

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Review of the Petition reveals that Petitioner has failed to name a proper

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respondent. On federal habeas, a state prisoner must name the state officer having

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custody ofhim as the respondent. Ortiz-Sandoval v. Gomez, 81 F.3d 891,894 (9th Cir.

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1996) (citing Rule 2(a), 28 U.S.C. foIl. § 2254). Federal courts lack personal jurisdiction
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when a habeas petition fails to name a proper respondent. See id.

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The warden is the typical respondent. However, "the rules following section 2254

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do not specify the warden." Id. "[T]he 'state officer having custody' may be 'either the

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warden of the institution in which the petitioner is incarcerated ... or the chief officer

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in charge of state penal institutions.'" Id. (quoting Rule 2(a), 28 U.S.C. foIl. § 2254

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advisory committee's note}. If "a petitioner is in custody due to the state action he is

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challenging, '[t]he named respondent shall be the state officer who has official custody

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Id. (quoting Rule 2, 28

U.S.C. foIl. § 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

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writ of] habeas corpus against the State under ... [whose] authority ... the petitioner is

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in custody. The actual person who is [the] custodian [of the petitioner] must be the

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respondent."

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requirement exists because a writ of habeas corpus acts upon the custodian of the state

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prisoner, the person who will produce "the body" if directed to do so by the Court.

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"Both the warden of a California prison and the Director of Corrections for California

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have the power to produce the prisoner." Ortiz-Sandoval, 81 F.3d at 895.

Ashley v. Washington, 394 F.2d 125, 126 (9th Cir. 1968).

This

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Here, Petitioner has not named a Respondent. In order for this Court to entertain

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the Petition filed in this action, Petitioner must name the warden in charge of the state

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correctional facility in which Petitioner is presently confined or the Director of the

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California Department of Corrections. Brittingham v. United States, 982 F.2d 378,379

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(9th Cir. 1992) (per curiam). IfPetitioner is on probation or parole, Petitioner must name

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the person who will produce "the body" if directed to do so by the Court, i.e., his parole

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officer and the official in charge of the parole agency, or his probation officer and the

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official in charge of the probation agency. See Ortiz-Sandoval, 81 F.3d at 894.

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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

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conviction or the length of their confinement in state prison, must first exhaust state
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judicial remedies. 28 U.S.C. § 2254(b), (c); Granberry v. Greer, 481 U.S. 129, 133-34

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(1987). Ordinarily, to satisfy the exhaustion requirement, a petitioner must "'fairly

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present[]' his federal claim to the highest state court with jurisdiction to consider it, or

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...

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828,829 (9th Cir. 1996) (citations omitted). 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

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rights have been violated. For example, "[i]f a habeas petitioner wishes to claim that an

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evidentiary ruling at a state court trial denied him [or her] the due process of law

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guaranteed by the Fourteenth Amendment, he [or she] must say so, not only in federal

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court, but in state court." See Duncan v. Henry, 513 U.S. 364,365-66 (1995)(emphasis

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added).

demonstrate[] that no state remedy remains available." Johnson v. Zenon, 88 F.3d

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Petitioner specifically indicates he did not seek review in the California Supreme

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Court. (See Pet. at 6-9, ECF No.1.) Petitioner states that he was unable to do so because

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he was convicted of misdemeanor offenses, and, per California procedure, appealed to

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the Appellate Division ofthe Superior Court. After his appeal was denied by that court,

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he sought to have the case transferred to the California Court of Appeal, but that request

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was also denied. Petitioner states he could not file anything in the California Supreme

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Court because the superior court and the appellate court denied his requests for

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certification and transfer. (Id. at 5.) The Ninth Circuit has held, however, that a

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petitioner in such circumstances must still present his claims to the California Supreme

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Court via a Petition for Writ of Habeas Corpus in order to satisfy the exhaustion

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requirement. See Larch v. Simons, 53 F .3d 1068, 1071-72 (9th Cir. 1995) (holding that

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"before turning to the federal courts for habeas review, misdemeanants must present their

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constitutional claims to the California Supreme Court by means of state habeas

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petitions").

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

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Death Penalty Act of 1996 (AEDP A) a one-year period of limitation shall apply to a

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petition for a writ of habeas corpus by a person in custody pursuant to the judgment of
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a State court. The limitation period shall run from the latest of:
(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
c!pplication created by State action in violation oC 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 SU2reme Court, ifthe 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 ofthe claim
or claims 2resented could have been discovered through the
exercise 01 due diligence.

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28 U.S.C.A. § 2244(d)(l)(A)-(D) (West Supp. 2002).

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

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

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(9th Cir. 1999). But see Artuz v. Bennett, 531 U.S. 4, 8 (2000) (holding that "an

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application is 'properly filed' when its delivery and acceptance [by the appropriate court

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officer for placement into the record] are in compliance with the applicable laws and

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rules governing filings."). However, absent some other basis for tolling, the statute of

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limitations does run while a federal habeas petition is pending. Duncan v. Walker, 533

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U.S. 167, 181-82 (2001).

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

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dismissal ofa habeas petition "[i]fit plainly appears from the face ofthe petition and any

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exhibits annexed to it that the petitioner is not entitled to reliefin the district court ..."

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Rule 4, 28 U.S.C. foIl. § 2254. Here, it appears plain from the Petition that Petitioner is

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not presently entitled to federal habeas relief because he has not alleged exhaustion of

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state court remedies.

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IN CUSTODY REQUIREMENT

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"Subject matter jurisdiction under the federal habeas corpus statute, 28 U.S.C.

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§ 2254(a), is limited to those persons 'in custody pursuant to the judgment of a State. '"

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Brockv. Weston, 31 F.3d 887, 889 (9th Cir. 1994); see also 28 U.S.C. § 2241(c)(3). It

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is a jurisdictional requirement that, at the time a habeas petition is filed, "the habeas

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petitioner be 'in custody' under the conviction or sentence under attack." Maleng v.

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Cook, 490 U.S. 488, 490-91 (1989) (citing 28 U.S.C. §§ 2241(c)(3) & 2254(a)); see

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Carafas v. LaVallee, 391 U.S. 234, 238 (1968)).

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Upon review of the documents filed in this case, it is not clear that Petitioner is

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currently in the custody of the State of California, nor was he when he filed the Petition

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because it lists Petitioner's address as "4101 Market Street, San Diego, CA 92102." In

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addition, Petitioner states his start date ofhis sentence is May 21,2013. (See Pet. at 1-2,

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ECF No. 1.)
CONCLUSION

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For the foregoing reasons, the Court DISMISSES the Petition without prejudice

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and with leave to amend. To have this case reopened, Petitioner must, no later than

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July 23. 2013: (1) pay the $5.00 filing fee OR submit adequate proof of his inability to

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pay the fee; AND (2) file a First Amended Petition that cures the pleading deficiencies

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outlined in this Order. The Clerk ofCourt is directed to mailPetitioner a blank Motion

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to Proceed In Forma Pauperis Application and a blank First Amended Petition form

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to Petitioner together with a copy ofthis Order.

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IT IS SO ORDERED.
DATED:

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