Del Rio v. Paramo et al

Filing 3

ORDER Granting Application To Proceed In Forma Pauperis (Dkt # 2 ) And Dismissing Petition Without Prejudice: To have this case reopened, Petitioner must file a First Amended Petition no later than 1/9/2017. Signed by Judge William Q. Hayes on 11/14/2016. (All non-registered users served via U.S. Mail Service. Per Order, a blank amended petition form also was sent to petitioner.) (mdc)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 RAMON DEL RIO, Civil No. 12 13 14 15 Petitioner, v. DANIEL PARAMO, Warden, et al., Respondents. 16cv2717-WQH (JLB) ORDER GRANTING APPLICATION TO PROCEED IN FORMA PAUPERIS AND DISMISSING PETITION WITHOUT PREJUDICE 16 17 Petitioner, a state prisoner proceeding pro se, has submitted a Petition for a Writ 18 of Habeas Corpus pursuant to 28 U.S.C. § 2254, together with a request to proceed in 19 forma pauperis. The Petition is subject to dismissal without prejudice because Petitioner 20 has failed to allege exhaustion of state court remedies. 21 MOTION TO PROCEED IN FORMA PAUPERIS 22 Petitioner has submitted a copy of his inmate trust account statement which shows 23 that he has no funds on account at the California correctional institution in which he is 24 presently confined. (ECF No. 2.) The Court will construe this as a motion to proceed in 25 forma pauperis. Because Petitioner cannot afford the $5.00 filing fee, the Court 26 GRANTS Petitioner’s application to proceed in forma pauperis, and allows Petitioner to 27 prosecute the above-referenced action as a poor person without being required to prepay 28 fees or costs and without being required to post security. -1- 16cv2717 1 FAILURE TO ALLEGE EXHAUSTION OF STATE COURT REMEDIES 2 Habeas petitioners who wish to challenge either their state court conviction or the 3 length of their confinement in state prison, must first exhaust state judicial remedies. 28 4 U.S.C. § 2254(b), (c); Granberry v. Greer, 481 U.S. 129, 133-34 (1987). To exhaust state 5 judicial remedies, a California state prisoner must present the California Supreme Court 6 with a fair opportunity to rule on the merits of every issue raised in his or her federal 7 habeas petition. 28 U.S.C. § 2254(b), (c); Granberry, 481 U.S. at 133-34. Moreover, to 8 properly exhaust state court remedies a petitioner must allege, in state court, how one or 9 more of his or her federal rights have been violated. The Supreme Court in Duncan v. 10 Henry, 513 U.S. 364 (1995) reasoned: “If state courts are to be given the opportunity to 11 correct alleged violations of prisoners’ federal rights, they must surely be alerted to the 12 fact that the prisoners are asserting claims under the United States Constitution.” Id. at 13 365-66 (emphasis added). For example, “[i]f a habeas petitioner wishes to claim that an 14 evidentiary ruling at a state court trial denied him [or her] the due process of law 15 guaranteed by the Fourteenth Amendment, he [or she] must say so, not only in federal 16 court, but in state court.” Id. at 366 (emphasis added). 17 Here, Petitioner has indicated that he has not raised his claims in the California 18 Supreme Court. (Pet. at 6.) The burden of pleading that a claim has been exhausted lies 19 with the petitioner. Cartwright v. Cupp, 650 F.2d 1103, 1104 (9th Cir. 1981). 20 Further, the Court cautions Petitioner that under the Antiterrorism and Effective 21 Death Penalty Act of 1996 (AEDPA) a one-year period of limitation shall apply to a 22 petition for a writ of habeas corpus by a person in custody pursuant to the judgment of 23 a State court. The limitation period shall run from the latest of: 24 25 26 27 (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; (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; 28 -2- 16cv2717 1 2 3 4 (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 (D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence. 5 6 28 U.S.C.A. § 2244(d)(1)(A)-(D) (West 2006). 7 The statute of limitations does not run while a properly filed state habeas corpus 8 petition is pending. 28 U.S.C. § 2244(d)(2); see Nino v. Galaza, 183 F.3d 1003, 1006 9 (9th Cir. 1999). But see Artuz v. Bennett, 531 U.S. 4, 8 (2000) (holding that “an 10 application is ‘properly filed’ when its delivery and acceptance [by the appropriate court 11 officer for placement into the record] are in compliance with the applicable laws and rules 12 governing filings.”). However, absent some other basis for tolling, the statute of 13 limitations does run while a federal habeas petition is pending. Duncan v. Walker, 533 14 U.S. 167, 181-82 (2001). 15 Rule 4 of the Rules Governing Section 2254 Cases provides for summary dismissal 16 of a habeas petition “[i]f it plainly appears from the face of the petition and any attached 17 exhibits that the petitioner is not entitled to relief in the district court . . .” Rule 4, 28 18 U.S.C. foll. § 2254. Here, it appears plain from the Petition that Petitioner is not 19 presently entitled to federal habeas relief because he has not alleged exhaustion of state 20 court remedies. 21 CONCLUSION AND ORDER 22 Based on the foregoing, the Court GRANTS Petitioner’s Motion to proceed in 23 forma pauperis and DISMISSES this action without prejudice because Petitioner has 24 failed to allege exhaustion of state judicial remedies. To have this case reopened, 25 Petitioner must file a First Amended Petition no later than January 9, 2017, that cures 26 the pleading deficiencies set forth above. Petitioner is advised that if he has not alleged 27 exhaustion of his state court remedies before January 9, 2017, he will have to start over 28 by filing a completely new habeas petition in this Court. See In re Turner, 101 F.3d 1323 -3- 16cv2717 1 (9th Cir. 1997). The Clerk of Court is directed to send Petitioner a blank Southern 2 District of California amended petition form along with a copy of this Order. 3 4 5 6 IT IS SO ORDERED. DATED: November 14, 2016 WILLIAM Q. HAYES United States District Judge 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -4- 16cv2717

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