Mitchell v. State of California

Filing 2

ORDER DISMISSING CASE WITHOUT PREJDUICE. Signed by Judge Gonzalo P. Curiel on 7/25/2017.(All non-registered users served via U.S. Mail Service)(Copy of this Order and a blank petition form and a blank In Forma Pauperis Application were sent to Petitioner)(fth)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 MIKE E. MITCHELL, Case No.: 17cv1204 GPC (BLM) Petitioner, 12 13 14 ORDER DISMISSING CASE WITHOUT PREJUDICE v. STATE OF CALIFORNIA, 15 Respondent. 16 17 18 19 20 Petitioner, a state prisoner proceeding pro se, has filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. FAILURE TO SATISFY THE FILING FEE REQUIREMENT Petitioner has failed to pay the $5.00 filing fee and has failed to move to proceed in 21 forma pauperis. Because this Court cannot proceed until Petitioner has either paid the 22 $5.00 filing fee or qualified to proceed in forma pauperis, the Court DISMISSES the 23 case without prejudice. See Rule 3(a), 28 U.S.C. foll. § 2254. If Petitioner wishes to 24 proceed with this case, he must submit, no later than September 11, 2017, a copy of this 25 Order with the $5.00 fee or with adequate proof of his inability to pay the fee. 26 FAILURE TO NAME A PROPER RESPONDENT 27 Additionally, review of the Petition reveals that Petitioner has failed to name a 28 proper respondent. On federal habeas, a state prisoner must name the state officer having 1 17cv1204 GPC (BLM) 1 custody of him as the respondent. Ortiz-Sandoval v. Gomez, 81 F.3d 891, 894 (9th Cir. 2 1996) (citing Rule 2(a), 28 U.S.C. foll. § 2254). Federal courts lack personal jurisdiction 3 when a habeas petition fails to name a proper respondent. See id. 4 The warden is the typical respondent. However, “the rules following section 2254 5 do not specify the warden.” Id. “[T]he ‘state officer having custody’ may be ‘either the 6 warden of the institution in which the petitioner is incarcerated . . . or the chief officer in 7 charge of state penal institutions.’” Id. (quoting Rule 2(a), 28 U.S.C. foll. § 2254 8 advisory committee’s note). If “a petitioner is in custody due to the state action he is 9 challenging, ‘[t]he named respondent shall be the state officer who has official custody of 10 the petitioner (for example, the warden of the prison).’” Id. (quoting Rule 2, 28 U.S.C. 11 foll. § 2254 advisory committee’s note). 12 A long standing rule in the Ninth Circuit holds “that a petitioner may not seek [a 13 writ of] habeas corpus against the State under . . . [whose] authority . . . the petitioner is 14 in custody. The actual person who is [the] custodian [of the petitioner] must be the 15 respondent.” Ashley v. Washington, 394 F.2d 125, 126 (9th Cir. 1968). This requirement 16 exists because a writ of habeas corpus acts upon the custodian of the state prisoner, the 17 person who will produce “the body” if directed to do so by the Court. “Both the warden 18 of a California prison and the Director of Corrections for California have the power to 19 produce the prisoner.” Ortiz-Sandoval, 81 F.3d at 895. 20 Here, Petitioner has incorrectly named the “State of California,” as Respondent. 21 In order for this Court to entertain the Petition filed in this action, Petitioner must name 22 the warden in charge of the state correctional facility in which Petitioner is presently 23 confined or the Secretary of the California Department of Corrections and Rehabilitation. 24 Brittingham v. United States, 982 F.2d 378, 379 (9th Cir. 1992) (per curiam). 25 FAILURE TO ALLEGE EXAUSTION OF STATE JUDICIAL REMEDIES 26 Further, habeas petitioners who wish to challenge either their state court conviction or the 27 length of their confinement in state prison, must first exhaust state judicial remedies. 28 28 U.S.C. § 2254(b), (c); Granberry v. Greer, 481 U.S. 129, 133-34 (1987). To exhaust 2 17cv1204 GPC (BLM) 1 state judicial remedies, a California state prisoner must present the California Supreme 2 Court with a fair opportunity to rule on the merits of every issue raised in his or her 3 federal habeas petition. 28 U.S.C. § 2254(b), (c); Granberry, 481 U.S. at 133-34. 4 Moreover, to properly exhaust state court remedies a petitioner must allege, in state court, 5 how one or more of his or her federal rights have been violated. The Supreme Court in 6 Duncan v. Henry, 513 U.S. 364 (1995) reasoned: “If state courts are to be given the 7 opportunity to correct alleged violations of prisoners’ federal rights, they must surely be 8 alerted to the fact that the prisoners are asserting claims under the United States 9 Constitution.” Id. at 365-66 (emphasis added). For example, “[i]f a habeas petitioner 10 wishes to claim that an evidentiary ruling at a state court trial denied him [or her] the due 11 process of law guaranteed by the Fourteenth Amendment, he [or she] must say so, not 12 only in federal court, but in state court.” Id. at 366 (emphasis added). 13 Nowhere on the Petition does Petitioner allege that he raised his claims in the 14 California Supreme Court. If Petitioner has raised his claims in the California Supreme 15 Court he must so specify. “The burden of proving that a claim has been exhausted lies 16 with the petitioner.” Matthews v. Evatt, 105 F.3d 907, 911 (4th Cir. 1997); see Breard v. 17 Pruett, 134 F.3d 615, 619 (4th Cir. 1998); Lambert v. Blackwell, 134 F.3d 506, 513 (3d 18 Cir. 1997); Oyler v. Allenbrand, 23 F.3d 292, 300 (10th Cir. 1994); Rust v. Zent, 17 F.3d 19 155, 160 (6th Cir. 1994). 20 Further, the Court cautions Petitioner that under the Antiterrorism and Effective 21 Death Penalty Act of 1996 (AEDPA) a one-year period of limitation shall apply to a 22 petition for a writ of habeas corpus by a person in custody pursuant to the judgment of a 23 State court. The limitation period shall run from the latest of: 24 25 (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; 26 27 (B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of 28 3 17cv1204 GPC (BLM) 1 2 3 4 5 6 7 8 9 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 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)(1)(A)-(D) (West 2006). 10 The statute of limitations does not run while a properly filed state habeas corpus 11 petition is pending. 28 U.S.C. § 2244(d)(2); see Nino v. Galaza, 183 F.3d 1003, 1006 (9th 12 Cir. 1999). But see Artuz v. Bennett, 531 U.S. 4, 8 (2000) (holding that “an application is 13 ‘properly filed’ when its delivery and acceptance [by the appropriate court officer for 14 placement into the record] are in compliance with the applicable laws and rules governing 15 filings.”). However, absent some other basis for tolling, the statute of limitations does run 16 while a federal habeas petition is pending. Duncan v. Walker, 533 U.S. 167, 181-82 (2001). 17 Rule 4 of the Rules Governing Section 2254 Cases provides for summary dismissal 18 of a habeas petition “[i]f it plainly appears from the face of the petition and any exhibits 19 annexed to it that the petitioner is not entitled to relief in the district court . . .” Rule 4, 28 20 U.S.C. foll. § 2254. Here, it appears plain from the Petition that Petitioner is not 21 presently entitled to federal habeas relief because he has not alleged exhaustion of state 22 court remedies. 23 24 CONCLUSION Accordingly, the Court DISMISSES the Petition without prejudice due to 25 Petitioner’s failure satisfy the filing fee requirement, failure to name a proper respondent, 26 and failure to allege exhaustion of state judicial remedies. To have this case reopened, 27 Petitioner must (1) either pay the filing fee or provide adequate proof of his inability to 28 pay and (2) file a First Amended Petition no later than September 11, 2017 in 4 17cv1204 GPC (BLM) 1 conformance with this Order. For Petitioner’s convenience, the Clerk of Court shall 2 include with this Order, a blank petition form and a blank In Forma Pauperis Application. 3 4 IT IS SO ORDERED. Dated: July 25, 2017 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5 17cv1204 GPC (BLM)

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