Juarez v. Martel

Filing 2

ORDER DISMISSING CASE Without Prejudice: In order to have this case reopened, Petitioner must, no later than 8/21/2017, (1) either pay the filing fee or provide adequate proof of his inability to pay and (2) file a First Amended Petition. Signed by Judge William Q. Hayes on 6/21/2017. (All non-registered users served via U.S. Mail Service. Per Order, a blank IFP application and a blank form petition also were sent to petitioner.) (mdc)

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FILED

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JUN 2 2 2017

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CLERK, U.S. I TR CT COURT
SOUTHERN DIST
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RNIA

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BY

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EPUTY

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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JOSE JUAREZ,

Case No.: l 7cvl 173-WQH-JMA
Petitioner,

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v.

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ORDER DISMISSING CASE
WITHOUT PREJUDICE

M. MARTEL, Warden,

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Respondent.

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Petitioner, a state prisoner proceeding pro se, has filed a Petition for Writ of
Habeas Corpus pursuant to 28 U.S.C. § 2254.

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FAILURE TO SATISFY FILING FEE REQUIRMENT

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Petitioner has failed to pay the $5.00 filing fee and has failed to move to proceed in

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forma pauperis. Because this Court cannot proceed until Petitioner has either paid the

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$5.00 filing fee or qualified to proceed in forma pauperis, the Court DISMISSES the

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case without prejudice. See Rule 3(a), 28 U.S.C. foll. § 2254. If Petitioner wishes to

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proceed with this case, he must submit, no later than August 21, 2017, a copy of this

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Order with the $5.00 fee or with adequate proof of his inability to pay the fee. The Clerk

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of Court shall send a blank Southern District of California In Forma Pauperis Application

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to Petitioner along with a copy of this Order.

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III

17cvl 173-WQH-JMA

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FAIULRE TO STATE A COGNIZABLE CLAIM ON FEDERAL HABEAS

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Additionally, in accordance with Rule 4 of the rules governing§ 2254 cases,

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Petitioner has failed to allege that his state court conviction or sentence violates the

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Constitution of the United States.

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Title 28, United States Code, § 2254(a), sets forth the following scope of review
for federal habeas corpus claims:
The Supreme Court, a Justice thereof, a circuit judge, or a district
court shall entertain an application for a writ of habeas corpus in behalf of a
person in custody pursuant to the judgment of a State court only on the
ground that he is in custody in violation of the Constitution or laws or
treaties of the United States.

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28 U.S.C. § 2254(a). See Hernandez v. Ylst, 930 F.2d 714, 719 (9th Cir. 1991); Mannhalt

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v. Reed, 847 F.2d 576, 579 (9th Cir. 1988); Kealohapauole v. Shimada, 800 F.2d 1463,

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1464-65 (9th Cir. 1986). Thus, to present a cognizable federal habeas corpus claim under

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§ 2254, a state prisoner must allege both that he is in custody pursuant to a "judgment of

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a State court," and that he is in custody in "violation of the Constitution or laws or

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treaties of the United States." See 28 U.S.C. § 2254(a).

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Here, Petitioner asks this Court to "pardon" him so that might have a chance to

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remain in the United States. In no way does Petitioner claim he is "in custody in

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violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254. 1

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Further, the Court notes that Petitioner cannot simply amend his Petition to state a

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federal habeas claim and then refile the amended petition in this case. He must exhaust

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state judicial remedies before bringing his claims via federal habeas. State prisoners who

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wish to challenge their state court conviction must first exhaust state judicial remedies.

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

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Furthermore, the Supreme Court has stated that "pardon and commutation decisions have not
traditionally been the business of courts; as such, they are rarely, if ever, appropriate subjects for judicial
review." Connecticut Bd. of Pardons v. Dumschat, 452 U.S. 458, 464 (1981). In Dumschat, the Court
makes clear there is no liberty interest in pardon or commutation. Id.
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l 7cvl 173-WQH-JMA

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state judicial remedies, a California state prisoner must present the California Supreme

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Court with a fair opportunity to rule on the merits of every issue raised in his or her

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federal habeas petition. See 28 U.S.C. § 2254(b), (c); Granberry, 481 U.S. at 133-34.

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Moreover, to properly exhaust state court judicial remedies a petitioner must allege, in

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state court, how one or more of his or her federal rights have been violated. The Supreme

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Court in Duncan v. Henry, 513 U.S. 364 (1995) reasoned: "If state courts are to be given

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the opportunity to correct alleged violations of prisoners' federal rights, they must surely

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be alerted to the fact that the prisoners are asserting claims under the United States

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Constitution." Id. at 365-66. For example, "[i]f a habeas petitioner wishes to claim that

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an evidentiary ruling at a state court trial denied him the due process of law guaranteed

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by the Fourteenth Amendment, he must say so, not only in federal court, but in state

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court." Id. at 366.

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Additionally, the Court cautions Petitioner that under the Antiterrorism and

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Effective Death Penalty Act of 1996, a one-year period of limitation shall apply to a

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petition for a writ of habeas corpus by a person in custody pursuant to the judgment of a

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State court. The limitation period shall run 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;

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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
(D) the date on which the factual predicate of the claim or claims
presented could have been discovered through the exercise of due diligence.
28 U.S.C. § 2244(d)(l)(A)-(D) (West Supp. 2002).
The Court also notes that the statute of limitations does not run while a properly
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l 7cvl 173-WQH-JMA

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filed state habeas corpus petition is pending. 28 U.S.C. § 2244( d)(2); see Nino v. Galaza,

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183 F.3d 1003, 1006 (9th Cir. 1999). But see Artuz v. Bennett, 531 U.S. 4, 8 (2000)

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(holding that "an application is 'properly filed' when its delivery and acceptance [by the

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appropriate court officer for placement into the record] are in compliance with the

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applicable laws and rules governing filings."). However, absent some other basis for

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tolling, the statute of limitations does run while a federal habeas petition is pending.

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Duncan v. Walker, 533 U.S. 167, 181-82 (2001).
FAILURE TO ALLEGE EXHAUSTION OF STATE JUDICIAL REMEDIES

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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, 481 U.S. at 133-34. Nowhere on the

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Petition does Petitioner allege that he raised his claims in the California Supreme Court.

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

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The petitioner bears the burden of proving that a claim has been exhausted. Cartwright v.

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Cupp, 650 F.2d 1103, 1104 (9th Cir. 1981) (per curiam); Pereira v. Swarthout, No. 2:14-

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cv-00530-KJM-AC P, 2017 WL 735738, at *2 (E.D. Ca. Feb. 24, 2017).

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CONCLUSION
Based on the foregoing, the Court DISMISSES the Petition without prejudice for

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failure to satisfy the filing fee requirement, failure to state a cognizable claim, and failure

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to allege exhaustion of state judicial remedies. In order to have this case reopened,

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Petition must, no later than August 21, 2017, (1) either pay the filing fee or provide

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adequate proof of his inability to pay and (2) file a First Amended Petition which cures

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the pleading deficiencies discussed above. For Petitioner's convenience, the Clerk of

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Court shall attach to this Order a blank informa pauperis application and a blank form
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l 7cvl 173-WQH-JMA

1 petition.

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IT IS SO ORDERED.
D ated:

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United States District Judge

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