Camunas v. People

Filing 3

ORDER granting 2 Motion for Leave to Proceed in forma pauperis, and dismissing case without prejudice and with leave to amend. The Court GRANTS Petitioner's motion to proceed in forma pauperis and DISMISSES the Petition without prejudice and with leave to amend. To have this case reopened, Petitioner must file a First Amended Petition no later than 3/7/2017. The Clerk of Court is directed to mail Petitioner a blank First Amended Petition form together with a copy of this Order. Signed by Judge Anthony J. Battaglia on 1/4/2017. (All non-registered users served via U.S. Mail Service) Copy of a blank Petition form served with a copy of this order.(acc)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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MIGUEL U. CAMUNAS,

Case No.: 16cv2866 AJB (AGS)
Petitioner,

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v.

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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, Warden,

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Respondent.

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Petitioner, proceeding pro se, has submitted a Petition for Writ of Habeas Corpus
pursuant to 28 U.S.C. § 2254, together with a request to proceed in forma pauperis.
MOTION TO PROCEED IN FORMA PAUPERIS
Petitioner cannot afford the $5.00 filing fee. Thus, the Court GRANTS

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Petitioner’s application to proceed in forma pauperis, and allows Petitioner to prosecute

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the above-referenced action without being required to prepay fees or costs and without

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being required to post security. The Clerk of the Court shall file the Petition for Writ of

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Habeas Corpus without prepayment of the filing fee.

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FAILURE TO ALLEGE EXHAUSTION OF STATE JUDICIAL REMEDIES

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Upon review of the Petition, it is not clear Petitioner has exhausted his state

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judicial remedies. 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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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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It is not clear from the Petition that Petitioner as raised his claims in the California

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

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must so specify.

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

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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

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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).

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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

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U.S.C. foll. § 2254. Here, it appears plain from the Petition that Petitioner is not

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

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court remedies.

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FAILURE TO NAME PROPER RESPONDENT
Further Petitioner has failed to name a proper respondent. On federal habeas, a

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state prisoner must name the state officer having custody of him as the respondent. Ortiz-

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Sandoval v. Gomez, 81 F.3d 891, 894 (9th Cir. 1996) (citing Rule 2(a), 28 U.S.C. foll.

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§ 2254). Federal courts lack personal jurisdiction when a habeas petition fails to name a

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proper respondent. See id.

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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.

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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. foll. § 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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foll. § 2254 advisory committee’s note). If a “petitioner is on probation or parole, he may

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name his probation or parole officer ‘and the official in charge of the parole or probation

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agency, or the state correctional agency, as appropriate.’” Id. (quoting Rule 2, 28 U.S.C.

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foll. § 2254 advisory committee’s note). In some cases, a petitioner may name the state

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attorney general. Id.

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Here, Petitioner has incorrectly named “People,” as Respondent. In order for this

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Court to entertain a Petition for Writ of Habeas Corpus, Petitioner must name the person

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who will produce “the body” if directed to do so by the Court. Because Petitioner is on

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probation, the proper respondents are his probation officer and the official in charge of

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the probation agency. See Ortiz-Sandoval, 81 F.3d at 894.

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CONCLUSION
Accordingly, the Court GRANTS Petitioner’s motion to proceed in forma pauperis

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and DISMISSES the Petition without prejudice and with leave to amend. To have this

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case reopened, Petitioner must file a First Amended Petition no later than March 7,

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16cv2866 AJB (AGS)

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2017. The Clerk of Court is directed to mail Petitioner a blank First Amended Petition

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form together with a copy of this Order.

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IT IS SO ORDERED.
Dated: January 4, 2017

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