George v. People of the State of California

Filing 4

ORDER: (1) Granting Motion to Proceed in Forma Pauperis; and (2) Dismissing Case without Prejudice and with Leave to Amend. To have this case reopened, Petitioner must, no later than December 30,2016, file a First Amended Petition. Signed by Judge Roger T. Benitez on 11/15/2016.(Sent First Amended Petition form to Petitioner) (All non-registered users served via U.S. Mail Service)(knb) (jao).

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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Case No.: 16-2578 BEN (PCL)

RICHARD EARL GEORGE.
Petitioner.

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y.

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ORDER: (1) GRANTING MOTION
TO PROCEED IN FORMA
PAUPERIS; and (2) DISMISSING
CASE WITHOUT PREJUDICE AND
WITH LEAVE TO AMEND

PEOPLE OF THE STATE OF
CALIFORNIA,

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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 together with a motion to proceed in forma

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pauperis.

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MOTION TO PROCEED IN FORMA PAUPERIS
Petitioner has $0.00 on account at the California correctional institution in which

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22 he is presently confined. Petitioner cannot afford the $5.00 filing fee. Thus, the Court
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GRANTS Petitioner’s application to proceed in forma pauperis, and allows Petitioner to

24 prosecute the above-referenced action without being required to prepay fees or costs and
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without being required to post security. The Clerk of the Court shall file the Petition for

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Writ of Habeas Corpus without prepayment of the filing fee.

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FAILURE TO NAME PROPER RESPONDENT
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 of him 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 in

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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 of

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the petitioner (for example, the warden of the prison).”’ Id. (quoting Rule 2, 28 U.S.C.

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

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

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person who will produce “the body” if directed to do so by the Court. “Both the warden

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of a California prison and the Director of Corrections for California have the power to

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produce the prisoner.” Ortiz-Sandoval, 81 F.3d at 895.

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Here, Petitioner has incorrectly named “People of the State of California,” as

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

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must name the warden in charge of the state correctional facility in which Petitioner is

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presently confined or the Director of the California Department of Corrections.

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Brittingham v. United States, 982 F.2d 378, 379 (9th Cir. 1992) (per curiam).

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FAILURE TO ALLEGE EXHAUSTION OF STATE JUDICIAL REMEDIES
Further, habeas petitioners who wish to challenge either their state court conviction

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or the length of their confinement in state prison, must first exhaust state judicial

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

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Ordinarily, to satisfy the exhaustion requirement, a petitioner must ‘“fairly present[]’ his

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federal claim to the highest state court with jurisdiction to consider it, or ...

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demonstrate^ that no state remedy remains available.” Johnson v. Zenon, 88 F.3d 828,

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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).

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

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

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California Supreme Court he must so specify.

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

20 Death Penalty Act of 1996 (AEDPA) a one-year period of limitation applies to a petition
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for a writ of habeas corpus by a person in custody pursuant to the judgment of a State

22 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 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.A. § 2244(d)( 1 )(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).
Rule 4 of the Rules Governing Section 2254 Cases provides for summary dismissal

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

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annexed to it that the petitioner is not entitled to relief in the district court...” Rule 4, 28

19 U.S.C. foil. § 2254. Here, it appears plain from the Petition that Petitioner is not
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court remedies.
CONCLUSION

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

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24 with leave to amend. To have this case reopened, Petitioner must, no later than December
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30,2016, file a First Amended Petition that cures the pleading deficiencies outlined in this

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Order. The Clerk of Court is directed to mail Petitioner a blank First Amended Petition

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IT IS SO ORDEREP.
DATED: November/S ,2016

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RogfflPFijBenitez
United States District Judge

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