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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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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11 II MICHAEL JAMES HEMPHILL,

Petitioner,

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v.

14 II WARDEN,
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Case No.: 17cvl 178 WQH (JLB)

ORDER DISMISSING CASE
WITHOUT PREJUDICE

Respondent.

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Petitioner, a state prisoner proceeding pro se, has filed a Petition for Writ of

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18 II Habeas Corpus pursuant to 28 U.S.C. § 2254.
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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.
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l 7cvl 178 WQH (JLB)

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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).
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To exhaust state judicial remedies, a California state prisoner must present the California

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

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

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

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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
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wishes to claim that an evidentiary ruling at a state court trial denied him [or her] the due

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process of law guaranteed by the Fourteenth Amendment, he [or she] must say so, not

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only in federal court, but in state court." Id. at 366 (emphasis added).

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California Supreme Court. Although he indicates he did seek review in the California

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Supreme Court, he fails to allege that the claims presented in the federal petition were

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raised in his state petition for review. (See Pet. at 5.) If Petitioner has raised his claims in

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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
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Cir. 1997); see Breard v. Pruett, 134 F .3d 615, 619 (4th Cir. 1998); Lambert v.

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Blackwell, 134 F .3d 506, 513 (3d Cir. 1997); Oyler v. Allenbrand, 23 F .3d 292, 300

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(10thCir.1994);Rustv. Zent, 17F.3d 155, 160(6thCir. 1994).

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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

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17cvl 178 WQH (JLB)

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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;

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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, ifthe 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

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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. § 2244(d)(l)(A)-(D) (West 2006).

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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); Nino v. Galaza, 183 F.3d 1003, 1006 (9th Cir.

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1999); see also Artuz v. Bennett, 531 U.S. 4, 8 (2000) (holding that "an application is

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'properly filed' when its delivery and acceptance [by the appropriate court officer for

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placement into the record] are in compliance with the applicable laws and rules governing

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filings."). However, absent some other basis for tolling, the statute of limitations does run

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while a federal habeas petition is pending. Duncan v. Walker, 533 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 presently

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entitled to federal habeas relief because he has not alleged exhaustion of state court

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remedies.
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l 7cvl 178 WQH (JLB)

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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
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this case reopened, Petition must, no later than August 21, 2017, (I) either pay the filing

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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
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attach to this Order a blank in forma pauperis application and a blank First Amended

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Petition form.

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IT IS SO ORDERED.

II Dated:

f/Jc/f)
United States District Judge

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