Hemphill v. Warden

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 6/26/2017. (All non-registered users served via U.S. Mail Service. Per Order, a blank IFP form and a blank First Amended Petition form also were sent to petitioner.) (mdc)

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;-- \LED 1 2 3 - tFI JUN 21 AM t: 4i ~t.ri:", u .-c OlS 'TR\CT . . cou~T1,, <; -~ H:.r~.1,.:..-·11'\lli T \..>f- -...,t \.1FCR: ., -;= .,;-·_;·_.J" 4 • •-1'\.- ,- ! r-, ., -f" M~ l l-- 1 OEl'UTV ''" 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 II MICHAEL JAMES HEMPHILL, Petitioner, 12 13 II v. 14 II WARDEN, 15 II Case No.: 17cvl 178 WQH (JLB) ORDER DISMISSING CASE WITHOUT PREJUDICE Respondent. 16 17 Petitioner, a state prisoner proceeding pro se, has filed a Petition for Writ of 11 18 II Habeas Corpus pursuant to 28 U.S.C. § 2254. 19 11 20 11 21 11 FAILURE TO SATISFY FILING FEE REQUIREMENT Petitioner has failed to pay the $5 .00 filing fee and has failed to move to proceed in forma pauperis. Because this Court cannot proceed until Petitioner has either paid the 22 II $5.00 filing fee or qualified to proceed in forma pauperis, the Court DISMISSES the 23 II case without prejudice. See Rule 3(a), 28 U.S.C. foll. § 2254. If Petitioner wishes to 24 II proceed with this case, he must submit, no later than August 21, 2017, a copy of this 25 II Order with the $5.00 fee or with adequate proof of his inability to pay the fee. The Clerk 26 II of Court shall send a blank Southern District of California In Forma Pauperis Application 27 II to Petitioner along with a copy of this Order. 28 II 11 l 7cvl 178 WQH (JLB) 1 II 2 11 3 11 FAILURE TO ALLEGE EXHAUSTION OF STATE JUDICIAL REMEDIES Further, habeas petitioners who wish to challenge either their state court conviction or the length of their confinement in state prison must first exhaust state judicial 4 II remedies. 28 U.S.C. § 2254(b ), ( c ); Granberry v. Greer, 481 U.S. 129, 133-34 ( 1987). 5 11 To exhaust state judicial remedies, a California state prisoner must present the California 6 11 Supreme Court with a fair opportunity to rule on the merits of every issue raised in his or 7 her federal habeas petition. 28 U.S.C. § 2254(b ), (c ); Granberry, 481 U.S. at 133-34. 8 Moreover, to properly exhaust state court remedies a petitioner must allege, in state court, 9 II how one or more of his or her federal rights have been violated. The Supreme Court in 10 II Duncan v. Henry, 513 U.S. 364 (1995) reasoned: "If state courts are to be given the 11 11 opportunity to correct alleged violations of prisoners' federal rights, they must surely be 12 11 alerted to the fact that the prisoners are asserting claims under the United States 13 II Constitution." Id. at 365-66 (emphasis added). For example, "[i]f a habeas petitioner 14 11 wishes to claim that an evidentiary ruling at a state court trial denied him [or her] the due 15 11 process of law guaranteed by the Fourteenth Amendment, he [or she] must say so, not 16 11 only in federal court, but in state court." Id. at 366 (emphasis added). 17 11 18 11 California Supreme Court. Although he indicates he did seek review in the California 19 11 Supreme Court, he fails to allege that the claims presented in the federal petition were 20 11 raised in his state petition for review. (See Pet. at 5.) If Petitioner has raised his claims in 21 11 the California Supreme Court he must so specify. 'The burden of proving that a claim Nowhere on the Petition does Petitioner allege that he raised his claims in the 22 II has been exhausted lies with the petitioner." Matthews v. Evatt, 105 F.3d 907, 911 (4th 23 11 Cir. 1997); see Breard v. Pruett, 134 F .3d 615, 619 (4th Cir. 1998); Lambert v. 24 Blackwell, 134 F .3d 506, 513 (3d Cir. 1997); Oyler v. Allenbrand, 23 F .3d 292, 300 25 (10thCir.1994);Rustv. Zent, 17F.3d 155, 160(6thCir. 1994). 26 27 Further, the Court cautions Petitioner that under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) a one-year period of limitation shall apply to a 28 2 17cvl 178 WQH (JLB) 1 petition for a writ of habeas corpus by a person in custody pursuant to the judgment of a 2 State court. The limitation period shall run from the latest of: 3 (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; 4 5 (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, ifthe applicant was prevented from filing by such State action; 6 7 8 9 (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 10 11 applicable to cases on collateral review; or 12 (D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence. 13 14 15 28 U.S.C. § 2244(d)(l)(A)-(D) (West 2006). 16 The statute of limitations does not run while a properly filed state habeas corpus 17 petition is pending. 28 U.S.C. § 2244(d)(2); Nino v. Galaza, 183 F.3d 1003, 1006 (9th Cir. 18 1999); see also Artuz v. Bennett, 531 U.S. 4, 8 (2000) (holding that "an application is 19 'properly filed' when its delivery and acceptance [by the appropriate court officer for 20 placement into the record] are in compliance with the applicable laws and rules governing 21 filings."). However, absent some other basis for tolling, the statute of limitations does run 22 while a federal habeas petition is pending. Duncan v. Walker, 533 U.S. 167, 181-82 (2001). 23 Rule 4 of the Rules Governing Section 2254 Cases provides for summary dismissal 24 of a habeas petition "[i]f it plainly appears from the face of the petition and any exhibits 25 annexed to it that the petitioner is not entitled to relief in the district court ... " Rule 4, 28 26 U.S.C. foll. § 2254. Here, it appears plain from the Petition that Petitioner is not presently 27 entitled to federal habeas relief because he has not alleged exhaustion of state court 28 remedies. 3 l 7cvl 178 WQH (JLB) I II 2 11 CONCLUSION The Petition is DISMISSED without prejudice for failure to satisfy the filing fee 3 11 requirement and failing to allege exhaustion of state judicial remedies. In order to have 4 this case reopened, Petition must, no later than August 21, 2017, (I) either pay the filing 5 fee or provide adequate proof of his inability to pay, and (2) file a First Amended Petition 6 11 with adequately alleges exhaustion of state court remedies. The Clerk of Court shall 7 attach to this Order a blank in forma pauperis application and a blank First Amended 8 Petition form. 9 10 11 IT IS SO ORDERED. II Dated: f/Jc/f) United States District Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 l 7cvl 178 WQH (JLB)

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