Kimble v. Szumowski

Filing 7

ORDER DISMISSING CASE without Prejudice and with Leave to Amend. To have this case reopened, Petitioner must, no later than November 30, 2015: (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 Roger T. Benitez on 10/19/2015.(Sent IFP and First Amended Petition forms to Petitioner)(All non-registered users served via U.S. Mail Service)(knb)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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Civil No.

DIRK D. KIMBLE,
Petitioner,

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ORDER DISMISSING CASE
WITHOUT PREJUDICE AND
WITH LEAVE TO AMEND

v.

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DAVID M. SZUMOWSKI, Warden
Respondent.

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On September 15,2015, Petitioner, a state prisoner proceeding pro se, filed a

17 Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 in the Northern
18 District of California. (ECF No.1.) On September 28,2015, the case was transferred
19 to this Court. (ECF No.5.)
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FAILURE TO SATISFY FILING FEE REOUIREMENT

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

22 proceed informa pauperis. This Court cannot proceed until Petitioner has either paid
23 the $5.00 filing fee or qualified to proceed in forma pauperis. See Rule 3(a), 28
24 U.S.C. foIl. § 2254.
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FAILURE TO NAME PROPER RESPONDENT

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Review ofthe Petition reveals that Petitioner has failed to name a proper

27 respondent. On federal habeas, a state prisoner must name the state officer having
28 custody of him as the respondent. Ortiz-Sandoval v. Gomez, 81 F.3d 891, 894 (9th
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1 Cir. 1996) (citing Rule 2(a), 28 U.S.C. foil. § 2254). Federal courts lack personal
2 jurisdiction 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

4 2254 do not specifY the warden." Id. "[T]he 'state officer having custody' may be
5 'either the warden of the institution in which the petitioner is incarcerated ... or the
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chief officer in charge of state penal institutions. '" Id. (quoting Rule 2(a), 28 U.S.C.

7 foil. § 2254 advisory committee's note). If"a petitioner is in custody due to the state
8 action he is challenging, '[t]he named respondent shall be the state officer who has
9 official custody of the petitioner (for example, the warden of the prison). '" Id.
10 (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

12 [a writ of] habeas corpus against the State under ... [whose] authority ... the
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petitioner is in custody. The actual person who is [the] custodian [of the petitioner]

14 must be the respondent." Ashley v. Washington, 394 F.2d 125, 126 (9th Cir. 1968);
15 see also Brittingham v. United States, 982 F.2d 378, 379 (9th Cir. 1992) (per curiam).
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This requirement exists because a writ of habeas corpus acts upon the custodian of

17 the state prisoner, the person who will produce "the body" if directed to do so by the
18 Court. "Both the warden of a California prison and the Director of Corrections for
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California have the power to produce the prisoner." Ortiz-Sandoval, 81 F.3d at 895.

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Here, Petitioner has incorrectly named "Judge David M. Szumowski" as

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Respondent. In order for this Court to entertain the Petition filed in this action,

22 Petitioner must name the warden in charge ofthe state correctional facility in which
23 Petitioner is presently confined or the Director of the California Department of
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Corrections.

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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

27 conviction or the length of their confinement in state prison, must first exhaust state
28 judicial remedies. 28 U.S.C. § 2254(b), (c); Granberry v. Greer, 481 U.S. 129, 133-2-

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34 (1987). Ordinarily, to satisfy the exhaustion requirement, a petitioner must "'fairly

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

3 or ... demonstrate[] that no state remedy remains available." Johnson v. Zenon, 88
4 F.3d 828,829 (9th Cir. 1996) (citations omitted). Moreover, to properly exhaust state
5 court remedies a petitioner must allege, in state court, how one or more of his or her
6 federal rights have been violated. For example, "[i]f a habeas petitioner wishes to
7 claim that an evidentiary ruling at a state court trial denied him [or her] the due
8 process oflaw guaranteed by the Fourteenth Amendment, he [or she] must say so, not
9 only in federal court, but in state court." Duncan v. Henry, 513 U.S. 364, 365-66
10 (1995)(emphasis added).
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Nowhere on the Petition does Petitioner allege that he raised his claims in the

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California Supreme Court. If Petitioner has raised his claims in the California

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Supreme Court he must so specify.

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Further, the Court cautions Petitioner that under the Antiterrorism and

15 Effective Death Penalty Act of 1996 (AEDPA) a one-year period oflimitation applies
16 to a petition for a writ of habeas corpus by a person in custody pursuant to the
17 judgment of a State court. The limitation period runs 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 onhe time for seeking such review;
(B) the date on which the impediment to filing an application created
by State action in violation ofthe Constitution or laws oftbe United States
is removed, if the applicant was prevented from filing by such State action;

(C) the date on which the constitutional right asserted was initially'
recogmzed by the Supreme Court, if the right has been newly recognizea
by tlie Supr~me Court and made retroactively applicable to cases on
collateral reVIew; or
(D) the date on which the factual predicate of the claim or claims
p'resented could have been discovered through the exercise of due
ailigence.
28 U.S.C. § 2244(d)(I)(A)-(D).
The statute of limitations does not run while a properly filed state habeas

28 corpus petition is pending. 28 U.S.C. § 2244(d)(2); see Nino v. Galaza, 183 F.3d
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1003, 1006 (9th Cir. 1999). But see Artuz v. Bennett, 531 U.S. 4, 8 (2000) (holding

2 that "an application is 'properly filed' when its delivery and acceptance [by the
3 appropriate court officer for placement into the record] are in compliance with the
4 applicable laws and rules governing filings."). However, absent some other basis for
5 tolling, the statute oflimitations does run while a federal habeas petition is pending.
6 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

8 dismissal of a habeas petition "[i]f it plainly appears from the face of the petition and
9 any exhibits annexed to it that the petitioner is not entitled to relief in the district
10 court ..." Rule 4, 28 U.S.C. foIl. § 2254. Here, it appears plain from the Petition
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that Petitioner is not presently entitled to federal habeas relief because he has not

12 alleged exhaustion of state court remedies.
FAILURE TO STATE A COGNIZABLE FEDERAL CLAIM

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Additionally, in accordance with Rule 4 of the rules governing § 2254 cases,

15 Petitioner has failed to allege that his state court conviction or sentence violates the
16 Constitution of the United States.
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Title 28, United States Code, § 2254(a), sets forth the following scope of

18 review for federal habeas corpus claims:
The Supreme Court, a Justice thereof, a circuit judge, or a district court
shall entertain an application for a writ of habeas corpus in behalf of a
person in custody pursuant to the judgment of a State court only on the
ground that he is III custody in violatIOn of the Constitution or laws or
freaties of the United States.

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22 28 U.S.C. § 2254(a) (emphasis added); see also Hernandez v. Ylst, 930 F.2d 714,719
23 (9th Cir. 1991); Mannhalt v. Reed, 847 F.2d 576,579 (9th Cir. 1988); Kealohapauole
24 v. Shimoda, 800 F.2d 1463, 1464-65 (9th Cir. 1986). Thus, to present a cognizable
25 federal habeas corpus claim under § 2254, a state prisoner must allege both that he is
26 in custody pursuant to a "judgment of a State court," and that he is in custody in
27 "violation of the Constitution or laws or treaties of the United States."
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Here, Petitioner claims that "the DA never showed the Court the video from the

2 gas [station] surveillance," "my public defender said the footage was deleted after 7

3 days," "No business deletes footage due to 30 day recordings," "the city police, DEA,
4 ATF, FBI & CIA all ask businesses to record for 30 days," and "digital footage is east
5 to store with terabites these days." (Pet. at 6.) In no way does Petitioner claim he is
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"in custody in violation of the Constitution or laws or treaties of the United States."

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CONCLUSION
For the foregoing reasons, the Court DISMISSES this action without prejudice

9 and with leave to amend. To have this case reopened, Petitioner must, no later than
10 November 30, 2015: (1) pay the $5.00 filing fee OR submit adequate proof of his
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inability to pay the fee; AND (2) file a First Amended Petition that cures the pleading

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deficiencies set forth above. The Clerk of Court is directed to mail Petitioner a

13 blank Motion to Proceed In Forma Pauperis form and a blank First Amended
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Petition form together with a copy of this Order.
IT IS SO ORDERED.

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17 DATED:

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Octob~ 2015

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