Jarvis v. Unknown

Filing 2

ORDER DISMISSING CASE without Prejudice. Signed by Judge Roger T. Benitez on 2/4/2017.(Sent forms to Petitioner) (All non-registered users served via U.S. Mail Service)(knb)

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1 FILED 2 17 FEB-6 PM Z* 3S 3 4 W’ HURT 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 Civil No. TERENCE L. JARVIS, 12 Petitioner, 13 14 16cv3137-BEN (JMA) ORDER DISMISSING CASE WITHOUT PREJUDICE vs. UNKNOWN, 15 Respondent. 16 17 18 Petitioner, a state prisoner proceeding pro se, has submitted a document which has 19 been docketed as a Petition for a Writ of Habeas Corpus under 28 U.S.C. § 2254, in 20 which he requests an extension of time to file a habeas petition in this Court challenging 21 his state conviction. 22 Petitioner has not filed a Petition for a writ of habeas corpus in this action. 23 Therefore, unless Petitioner is a capital prisoner, he has not initiated habeas proceedings 24 in this Court. Calderon v. United States District Court. 98 F.3d 1102, 1107 n.3 (9th Cir. 25 1996) (“Unlike non-capital prisoners who initiate habeas proceedings by filing a petition 26 for a writ of habeas corpus, capital prisoners commence federal habeas proceedings by 27 filing a request for appointment of counsel.”); McFarland v. Scott. 512 U.S. 849 (1994). 28 III l:\Evejyone\_EFlLE-PROSEVBEN\l6cv3l37-Dismiss.wpd, 12717 -1- 16cv3137 1 Petitioner does not contend that he is a capital prisoner, that is, a prisoner under 2 sentence of death, and there is nothing in the documents he has submitted which 3 indicates that he is a capital prisoner. If Petitioner wishes to proceed with a habeas 4 action in this Court, he must (as is the case with all non-capital prisoners) file a petition 5 for a writ of habeas corpus, which will be given a separate civil case number. However, 6 if Petitioner is in fact a capital prisoner, he may request the Court to re-open this action 7 in order to permit him to file a Petition under the civil case number assigned to this 8 action. 9 The Court cautions Petitioner that a one-year period of limitation applies to a 10 petition for a writ of habeas corpus by a person in custody pursuant to the judgment of 11 12 13 14 15 16 17 18 19 20 21 a State court. The limitation period begins to run on the 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; (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; (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 ancT 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 or due diligence. 28 U.S.C.A. § 2244(d)( 1 )(A)-(D) (West 2006). 22 The statute of limitations is tolled while a properly filed state habeas corpus 23 petition is pending. 28 U.S.C. § 2244(d)(2); see Nino v. Galaza. 183 F.3d 1003, 1006 24 (9th Cir. 1999). But see Artuz v. Bennett. 531 U.S. 4, 8 (2000) (holding that “an 25 application is ‘properly filed’ when its delivery and acceptance [by the appropriate court 26 officer for placement into the record] are in compliance with the applicable laws and 27 rules governing filings.”); Bonner v. Carev. 425 F.3d 1145, 1149 (9th Cir. 2005) 28 (holding that a state application for post-conviction relief which is ultimately dismissed I:\Eveiyone\_EFlLE-PROSE\BEN\l6cv3137-Dismiss.wpd. 12717 -2- 16cv3137 1 as untimely was neither “properly filed” nor “pending” while it was under consideration 2 by the state court, and therefore does not toll the statute of limitations), as amended 439 3 F.3d 993. However, absent some other basis for tolling, the statute of limitations 4 continues to run while a federal habeas petition is pending. Duncan v. Walker. 533 U.S. 5 167, 181-82 (2001). 6 Further, habeas petitioners who wish to challenge either their state court 7 conviction or the length of their confinement in state prison, must first exhaust state 8 judicial remedies. 28 U.S.C. § 2254(b), (c); Granberrv v. Greer. 481 U.S. 129, 133-34 9 (1987). To exhaust state judicial remedies, a California state prisoner must present the 10 California Supreme Court with a fair opportunity to rule on the merits of every issue 11 raised in his or her federal habeas petition. 28 U.S.C. § 2254(b), (c); Granberrv. 481 12 U.S. at 133-34. Moreover, to properly exhaust state court remedies a petitioner must 13 allege, in state court, how one or more of his or her federal rights have been violated. 14 The Supreme Court in Duncan v. Henry. 513 U.S. 364 (1995), reasoned: “If state courts 15 are to be given the opportunity to correct alleged violations of prisoners’ federal rights, 16 they must surely be alerted to the fact that the prisoners are asserting claims under the 17 United States Constitution.” Id. at 365-66 (emphasis added). For example, “[i] fa habeas 18 petitioner wishes to claim that an evidentiary ruling at a state court trial denied him [or 19 her] the due process of law guaranteed by the Fourteenth Amendment, he [or she] must 20 say so, not only in federal court, but in state court.” Id. at 366 (emphasis added). CONCLUSION AND ORDER 21 22 This action is DISMISSED without prejudice because Petitioner has not filed a 23 Petition and has therefore failed to initiate federal habeas proceedings in this action. If 24 Petitioner is a capital prisoner he may request to have this case reopened. If Petitioner 25 is a non-capital prisoner, he may file a petition for a writ of habeas corpus which will be 26 given a separate civil case number. The Clerk of Court shall send Petitioner a blank 27 Southern District of California form Petition for Writ of Habeas Corpus by a Person in 28 III I:\Evefyone\_EFILE-PROSEVBENV16cv3l37-Dismiss.wpd, 12717 -3- 16cv3137 1 State Custody, and a blank Southern District of California in forma pauperis application 2 form. 3 4 5 IT IS SO O DATED: Hon. Unite^aSmTes District Judge ' 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 I:\Evcfyone\_EFlLE-PROSE\BEN\l6cv3137-Dismiss.wpd, 12717 -4- 16cv3137

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