Rhine v. Court of Appeals 4th District

Filing 3

ORDER: (1) Denying 2 Motion to Proceed in Forma Pauperis; and (2) Dismissing Case withouth Prejudice and with Leave to Amend. To have the case reopened, Petitioner must, no later than 7/25/2017: (1) pay the $5.00 filing fee OR submit adequate proof that Petitioner cannot pay the $5.00 filing fee; AND (2) file a First Amended Petition that cures the pleading deficiencies. Signed by Judge Michael M. Anello on 5/22/2017. (A blank motion to proceed in forma pauperis for and a blank First Amended Petition form together with a copy of this Order were mailed to the Petitioner) (All non-registered users served via U.S. Mail Service)(ag)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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Case No.: 17cv0997 MMA (JMA)

JOHN RHINE,
Petitioner,

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v.

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ORDER: (1) DENYING MOTION TO
PROCEED IN FORMA PAUPERIS;
and (2) DISMISSING CASE
WITHOUT PREJUDICE AND WITH
LEAVE TO AMEND

COURT OF APPEALS 4TH DISTRICT,

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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, together with a request to proceed in forma

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pauperis pursuant to 28 U.S.C. § 1915(a). See Doc. Nos. 1, 2.

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MOTION TO PROCEED IN FORMA PAUPERIS

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The request to proceed in forma pauperis is DENIED because Petitioner has not

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provided the Court with sufficient information to determine Petitioner’s financial status.

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A request to proceed in forma pauperis made by a state prisoner must include a certificate

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from the warden or other appropriate officer showing the amount of money or securities

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Petitioner has on account in the institution. Rule 3(a)(2), 28 U.S.C. foll. § 2254; Local

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Rule 3.2. Petitioner has failed to provide the Court with the required Prison Certificate.

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17cv0997 MMA (JMA)

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FAILURE TO NAME PROPER RESPONDENT

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Additionally, review of the Petition reveals that Petitioner has failed to name a

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proper respondent. On federal habeas, a state prisoner must name the state officer having

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custody of him as the respondent. Ortiz-Sandoval v. Gomez, 81 F.3d 891, 894 (9th Cir.

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1996) (citing Rule 2(a), 28 U.S.C. foll. § 2254). Federal courts lack personal jurisdiction

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when a habeas petition fails to name a proper respondent. See id.

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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).

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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. “Both the warden

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of a California prison and the Director of Corrections for California have the power to

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produce the prisoner.” Ortiz-Sandoval, 81 F.3d at 895.

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Here, Petitioner has incorrectly named “Court of Appeals 4th District,” as

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Respondent. In order for this Court to entertain the Petition filed in this action, Petitioner

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must name the warden in charge of the state correctional facility in which Petitioner is

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presently confined or the Director of the California Department of Corrections.

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Brittingham v. United States, 982 F.2d 378, 379 (9th Cir. 1992) (per curiam).

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17cv0997 MMA (JMA)

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FAILURE TO ALLEGE EXHAUSTION OF STATE JUDICIAL REMEDIES
Further, habeas petitioners who wish to challenge either their state court conviction

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or the length of their confinement in state prison, must first exhaust state judicial

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remedies. 28 U.S.C. § 2254(b), (c); Granberry v. Greer, 481 U.S. 129, 133-34 (1987).

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Ordinarily, to satisfy the exhaustion requirement, a petitioner must “‘fairly present[]’ his

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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).

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Nowhere on the Petition does Petitioner allege that he raised his claims in the

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

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Court he must so specify.

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The Court cautions Petitioner that under the Antiterrorism and Effective Death

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Penalty Act of 1996 (AEDPA) a one-year period of limitation applies to a petition for a

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writ of habeas corpus by a person in custody pursuant to the judgment of a State court.

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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;
(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

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17cv0997 MMA (JMA)

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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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CONCLUSION

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For the foregoing reasons, Court DENIES the request to proceed in forma

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pauperis, and DISMISSES the case without prejudice. To have the case reopened,

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Petitioner must, no later than July 25, 2017: (1) pay the $5.00 filing fee OR submit

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adequate proof that Petitioner cannot pay the $5.00 filing fee; AND (2) file a First

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Amended Petition that cures the pleading deficiencies outlined in this Order. The Clerk

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of Court is directed to mail Petitioner a blank motion to proceed in forma pauperis

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17cv0997 MMA (JMA)

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form and a blank First Amended Petition form together with a copy of this Order.
IT IS SO ORDERED.

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DATED: May 22, 2017

________________________________
HON. MICHAEL M. ANELLO
United States District Judge

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17cv0997 MMA (JMA)