Morgan v. Garcia

Filing 3

ORDER: (1) Dismissing Case without Prejudice and with Leave to Amend; and (2) Denying Motion for Appointment of Counsel without Prejudice. To have this case reopened, Petitioner must, no later than November 14, 2016, file a First Amended Petition. Signed by Judge Roger T. Benitez on 9/12/2016.(Sent Pro Se prisoner packet 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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THOMAS MORGAN,

Case No.: 16-2239 BEN (KSC)
Petitioner,

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v.

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PHILLIP GARCIA,
Respondent.

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ORDER: (1) DISMISSING CASE
WITHOUT PREJUDICE AND WITH
LEAVE TO AMEND; and (2)
DENYING MOTION FOR
APPOINTMENT OF COUNSEL
WITHOUT PREJUDICE

Petitioner, proceeding pro se, has filed a petition for writ of habeas corpus pursuant

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to 28 U.S.C. § 2254 together with a motion to appoint counsel. He has paid the $5.00

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filing fee.

FAILURE TO STATE A COGNIZABLE FEDERAL CLAIM

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In accordance with Rule 4 ofthe rules governing § 2254 cases, Petitioner has failed

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to allege that his state court conviction or sentence violates the Constitution ofthe United

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States. Title 28, United States Code, § 2254(a), sets forth the following scope of review

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for federal habeas corpus claims:

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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

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16-2239 BEN (KSC)

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ground that he is in custody in violation of the Constitution or laws or
treaties of the United States.

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28 U.S.C. § 2254(a) (emphasis added). See Hernandez v. nst, 930 F.2d 714,719 (9th

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Cir. 1991); Mannhalt v. Reed, 847 F.2d 576,579 (9th Cir. 1988); Kealohapauole v.

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Shimoda, 800 F.2d 1463, 1464-65 (9th Cir. 1986). Thus, to present a cognizable federal

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habeas corpus claim under § 2254, a state prisoner must allege both that he is in custody

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pursuant to a "judgment of a State court," and that he is in custody in "violation of the

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Constitution or laws or treaties ofthe United States." See 28 U.S.C. § 2254(a).

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Here, Petitioner claims that his probation officer is failing to comply with the

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Interstate Compact Application. (See Pet. at 5-14.) In no way does Petitioner claim he is

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"in custody in violation of the Constitution or laws or treaties ofthe United States." 28

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U.S.C. § 2254.

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Further, the Court notes that Petitioner cannot simply amend his Petition to state a

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federal habeas claim and then refile the amended petition in this case. He must exhaust

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state judicial remedies before bringing his claims via federal habeas. State prisoners who

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wish to challenge their state court conviction must first exhaust state judicial remedies.

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

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state judicial remedies, a California state prisoner must present the California Supreme

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Court with a fair opportunity to rule on the merits of every issue raised in his or her

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federal habeas petition. See 28 U.S.C. § 2254(b), (c); Granberry, 481 U.S. at 133-34.

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Moreover, to properly exhaust state court judicial remedies a petitioner must allege, in

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state court, how one or more of his or her federal rights have been violated. The Supreme

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Court in Duncan v. Henry, 513 U.S. 364 (1995) reasoned: "If state courts are to be given

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the opportunity to correct alleged violations of prisoners' federal rights, they must surely

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be alerted to the fact that the prisoners are asserting claims under the United States

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Constitution." Id. at 365-66 (emphasis added). For example, "[i]f a habeas petitioner

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wishes to claim that an evidentiary ruling at a state court trial denied him the due process

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16-2239 BEN (KSC)

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oflaw guaranteed by the Fourteenth Amendment, he must say so, not only in federal

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court, but in state court." Id. (emphasis added).

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Additionally, the Court cautions Petitioner that under the Antiterrorism and

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Effective Death Penalty Act of 1996 (Act), signed into law on April 24, 1996, a one-year

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period of limitation applies to a petition for a writ of habeas corpus by a person in

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custody pursuant to the judgment of a State court. The limitation period runs from the

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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 application created
by State action in violation ofthe Constitution or laws ofthe 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 ofthe claim or claims
presented could have been discovered through the exercise of due
diligence.

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

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The Court also notes that the statute oflimitations does not run while a properly

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filed state habeas corpus petition is pending. 28 U.S.C. § 2244(d)(2); see Nino v. Galaza,

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183 F.3d 1003, 1006 (9th Cir. 1999), cert. denied, 529 U.S. 1104 (2000). But see Artuz v.

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Bennett, 531 U.S. 4, 8 (2000) (holding that "an application is 'properly filed' when its

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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,

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absent some other basis for tolling, the statute oflimitations does run while a federal

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

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16-2239 BEN (KSC)

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CONCLUSION
Based on the foregoing, the Court DISMISSES this action without prejudice and

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

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November 14, 2016, file a First Amended Petition that cures the pleading deficiencies set

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forth above. The Court also DENIES the motion to appoint counsel without prejudice.

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The Clerk of Court shall mail Petitioner a blank Pro Se Prisoner Packet to Petitioner

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with a copy of this Order.

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IT IS SO ORDERED.

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DATED: __~~~~~~_

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