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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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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THOMAS DANIEL BOVENSIEP,

Case No.: 17cv0074 GPC (NLS)

Petitioner,

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v.

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ORDER DISMISSING CASE
WITHOUT PREJUDICE AND WITH
LEAVE TO AMEND

DEAN BORDERS, Warden,

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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 in the United States District Court for the

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Central District of California and paid the filing fee.

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FAILURE TO ALLEGE EXHAUSTION OF STATE JUDICIAL REMEDIES

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The Petition must be dismissed without prejudice because it is not clear from the

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Petition that Petitioner has exhausted his claims. Habeas petitioners who wish to

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challenge either their state court conviction or the length of their confinement in state

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prison, must first exhaust state judicial remedies. 28 U.S.C. § 2254(b), (c); Granberry v.

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Greer, 481 U.S. 129, 133-34 (1987). Ordinarily, to satisfy the exhaustion requirement, a

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petitioner must “‘fairly present[]’ his federal claim to the highest state court with

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jurisdiction to consider it, or . . . demonstrate[] that no state remedy remains available.”

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Johnson v. Zenon, 88 F.3d 828, 829 (9th Cir. 1996) (citations omitted). Moreover, to
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17cv0074 GPC (NLS)

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properly exhaust state court remedies a petitioner must allege, in state court, how one or

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more of his or her federal rights have been violated. For example, “[i]f a habeas

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petitioner wishes to claim that an evidentiary ruling at a state court trial denied him [or

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her] the due process of law guaranteed by the Fourteenth Amendment, he [or she] must

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say so, not only in federal court, but in state court.” See Duncan v. Henry, 513 U.S. 364,

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365-66 (1995)(emphasis added).
Petitioner states that he raised “federal and state due process and fairness” claims

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and statute of limitations claims in state court. (Pet. at 3.) In the body of his Petition,

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however, he raises speedy trial, destruction of evidence, selective prosecution, and

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obstruction of justice claims. (Pet. at 11-17.) Thus, it is not clear whether Petitioner has

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

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he 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.
CONCLUSION

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For the foregoing reasons, the Court DISMISSES this case without prejudice and

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with leave to amend. If Petitioner wishes to proceed with this case, he must, file a First

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Amended Petition that cures the pleading deficiencies outlined in this Order no later

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than March 21, 2017: The Clerk of Court is directed to send a blank First Amended

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Petition form to Petitioner along with a copy of this Order.

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IT IS SO ORDERED.
Dated: February 16, 2017

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