Bovensiep v. Dean Borders

Filing 9

ORDER DISMISSING CASE Without Prejudice and With Leave to Amend. If Petitioner wishes to proceed with this case, he must, file a First Amended Petition that cures the pleading deficiencies outlined in this Order no later than March 21, 2017: The C lerk of Court is directed to send a blank First Amended Petition form to Petitioner along with a copy of this Order. Signed by Judge Gonzalo P. Curiel on 2/16/17.(All non-registered users served via U.S. Mail Service)(First Amended Petition mailed to Petitioner) (dlg)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 THOMAS DANIEL BOVENSIEP, Case No.: 17cv0074 GPC (NLS) Petitioner, 12 13 v. 14 ORDER DISMISSING CASE WITHOUT PREJUDICE AND WITH LEAVE TO AMEND DEAN BORDERS, Warden, 15 Respondent. 16 17 Petitioner, a state prisoner proceeding pro se, has filed a Petition for Writ of 18 Habeas Corpus pursuant to 28 U.S.C. § 2254 in the United States District Court for the 19 Central District of California and paid the filing fee. 20 FAILURE TO ALLEGE EXHAUSTION OF STATE JUDICIAL REMEDIES 21 The Petition must be dismissed without prejudice because it is not clear from the 22 Petition that Petitioner has exhausted his claims. Habeas petitioners who wish to 23 challenge either their state court conviction or the length of their confinement in state 24 prison, must first exhaust state judicial remedies. 28 U.S.C. § 2254(b), (c); Granberry v. 25 Greer, 481 U.S. 129, 133-34 (1987). Ordinarily, to satisfy the exhaustion requirement, a 26 petitioner must “‘fairly present[]’ his federal claim to the highest state court with 27 jurisdiction to consider it, or . . . demonstrate[] that no state remedy remains available.” 28 Johnson v. Zenon, 88 F.3d 828, 829 (9th Cir. 1996) (citations omitted). Moreover, to 1 17cv0074 GPC (NLS) 1 properly exhaust state court remedies a petitioner must allege, in state court, how one or 2 more of his or her federal rights have been violated. For example, “[i]f a habeas 3 petitioner wishes to claim that an evidentiary ruling at a state court trial denied him [or 4 her] the due process of law guaranteed by the Fourteenth Amendment, he [or she] must 5 say so, not only in federal court, but in state court.” See Duncan v. Henry, 513 U.S. 364, 6 365-66 (1995)(emphasis added). Petitioner states that he raised “federal and state due process and fairness” claims 7 8 and statute of limitations claims in state court. (Pet. at 3.) In the body of his Petition, 9 however, he raises speedy trial, destruction of evidence, selective prosecution, and 10 obstruction of justice claims. (Pet. at 11-17.) Thus, it is not clear whether Petitioner has 11 exhausted his claims. If Petitioner has raised his claims in the California Supreme Court 12 he must so specify. 13 Further, the Court cautions Petitioner that under the Antiterrorism and Effective 14 Death Penalty Act of 1996 (AEDPA) a one-year period of limitation applies to a petition 15 for a writ of habeas corpus by a person in custody pursuant to the judgment of a State 16 court. The limitation period runs from the latest of: 17 (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; 18 19 (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; 20 21 22 (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 23 24 25 26 27 /// /// 28 2 17cv0074 GPC (NLS) 1 2 (D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence. 3 4 28 U.S.C.A. § 2244(d)(1)(A)-(D) (West Supp. 2002). 5 The statute of limitations does not run while a properly filed state habeas corpus 6 petition is pending. 28 U.S.C. § 2244(d)(2); see Nino v. Galaza, 183 F.3d 1003, 1006 7 (9th Cir. 1999). But see Artuz v. Bennett, 531 U.S. 4, 8 (2000) (holding that “an 8 application is ‘properly filed’ when its delivery and acceptance [by the appropriate court 9 officer for placement into the record] are in compliance with the applicable laws and 10 rules governing filings.”). However, absent some other basis for tolling, the statute of 11 limitations does run while a federal habeas petition is pending. Duncan v. Walker, 533 12 U.S. 167, 181-82 (2001). 13 Rule 4 of the Rules Governing Section 2254 Cases provides for summary dismissal 14 of a habeas petition “[i]f it plainly appears from the face of the petition and any exhibits 15 annexed to it that the petitioner is not entitled to relief in the district court . . .” Rule 4, 28 16 U.S.C. foll. § 2254. Here, it appears plain from the Petition that Petitioner is not 17 presently entitled to federal habeas relief because he has not alleged exhaustion of state 18 court remedies. CONCLUSION 19 20 For the foregoing reasons, the Court DISMISSES this case without prejudice and 21 with leave to amend. If Petitioner wishes to proceed with this case, he must, file a First 22 Amended Petition that cures the pleading deficiencies outlined in this Order no later 23 than March 21, 2017: The Clerk of Court is directed to send a blank First Amended 24 Petition form to Petitioner along with a copy of this Order. 25 26 IT IS SO ORDERED. Dated: February 16, 2017 27 28 3 17cv0074 GPC (NLS)

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