Maas v. Rackley

Filing 3

ORDER (1) Construing Action as a Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 (2) Granting 2 Motion for Leave to Proceed in forma pauperis and (3) Dismissing Case Without Prejudice. To have this case reopened, Petitioner m ust file an amended petition which cures the pleading deficiency discussed above no later than 11/3/2017. Signed by Judge Cynthia Bashant on 09/05/2017. (Blank 28 U.S.C. § 2254 Form sent to Petitioner via U.S. mail) (All non-registered users served via U.S. Mail Service)(ajs) (sjt).

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 MICHAEL E. MAAS, Case No.: 3:17-cv-1547-BAS(JMA) Petitioner, 12 ORDER: 13 14 (1) CONSTRUING ACTION AS A PETITION FOR WRIT OF HABEAS CORPUS PURSUANT TO 28 U.S.C. § 2254 v. 15 16 17 18 (2) GRANTING IN FORMA PAUPERIS APPLICATION (ECF. No. 2) RONALD RACKLEY, Warden, Respondent. 19 AND 20 21 (3) DISMISSING CASE WITHOUT PREJUDICE 22 23 24 Petitioner Michael E. Maas, a state prisoner, proceeding pro se, has filed a Petition 25 for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241 (ECF No. 1), along with a request 26 to proceed in forma pauperis (ECF No. 2). Although Petitioner filed this action pursuant 27 to 28 U.S.C. § 2241, he is a state prisoner attacking the validity of a state court conviction 28 and sentence imposed by the State of California. Therefore, Petitioner may not proceed 1 17cv1547 1 under section 2241, but may only proceed with a habeas action in federal court under 28 2 U.S.C. § 2254. See White v. Lambert, 370 F.3d 1002, 1006-07 (9th Cir. 2004) (holding 3 that section 2254 is the proper jurisdictional basis for a habeas petition brought by an 4 individual “in custody pursuant to a state court judgment”). 5 CONTRUES this action as one brought pursuant to 28 U.S.C. § 2254. The Court, therefore, 6 7 I. REQUEST TO PROCEED IN FORMA PAUPERIS 8 Along with his request to proceed in forma pauperis, Petitioner has submitted a copy 9 of his prison trust account statement which reflects that he has no funds on account at the 10 facility in which he is presently confined. Petitioner cannot afford the $5.00 filing fee. 11 Thus, the Court GRANTS Petitioner’s application to proceed in forma pauperis (ECF No. 12 2). The Clerk of the Court shall file the Petition for Writ of Habeas Corpus without 13 prepayment of the filing fee. 14 15 II. FAILURE TO ALLEGE EXHAUSTION OF STATE JUDICIAL REMEDIES 16 The Petition must be dismissed, however, because Petitioner has failed to allege 17 exhaustion of state judicial remedies. Further, habeas petitioners who wish to challenge 18 either their state court conviction or the length of their confinement in state prison, must 19 first exhaust state judicial remedies. 28 U.S.C. § 2254(b), (c); Granberry v. Greer, 481 20 U.S. 129, 133-34 (1987). To exhaust state judicial remedies, a California state prisoner 21 must present the California Supreme Court with a fair opportunity to rule on the merits of 22 every issue raised in his or her federal habeas petition. 28 U.S.C. § 2254(b), (c); 23 Granberry, 481 U.S. at 133-34. Moreover, to properly exhaust state court remedies a 24 petitioner must allege, in state court, how one or more of his or her federal rights have 25 been violated. The Supreme Court in Duncan v. Henry, 513 U.S. 364 (1995), reasoned: 26 “If state courts are to be given the opportunity to correct alleged violations of prisoners’ 27 federal rights, they must surely be alerted to the fact that the prisoners are asserting claims 28 under the United States Constitution.” Id. at 365-66 (emphasis added). For example, “[i]f 2 17cv1547 1 a habeas petitioner wishes to claim that an evidentiary ruling at a state court trial denied 2 him [or her] the due process of law guaranteed by the Fourteenth Amendment, he [or she] 3 must say so, not only in federal court, but in state court.” Id. at 366 (emphasis added). 4 Nowhere on the Petition does Petitioner allege that he raised his claims in the 5 California Supreme Court. If Petitioner has raised his claims in the California Supreme 6 Court, he must so specify. “The burden of proving that a claim has been exhausted lies 7 with the petitioner.” Matthews v. Evatt, 105 F.3d 907, 911 (4th Cir. 1997); see Breard v. 8 Pruett, 134 F.3d 615, 619 (4th Cir. 1998); Lambert v. Blackwell, 134 F.3d 506, 513 (3d 9 Cir. 1997); Oyler v. Allenbrand, 23 F.3d 292, 300 (10th Cir. 1994); Rust v. Zent, 17 F.3d 10 155, 160 (6th Cir. 1994). 11 Further, the Court cautions Petitioner that under the Antiterrorism and Effective 12 Death Penalty Act of 1996 (AEDPA) a one-year period of limitation shall apply to a 13 petition for a writ of habeas corpus by a person in custody pursuant to the judgment of a 14 state court. The limitation period shall run from the latest of: 15 16 (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; 17 18 19 20 21 22 23 24 25 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 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.A. § 2244(d)(1)(A)-(D) (West Supp. 2002). 28 3 17cv1547 1 The statute of limitations does not run while a properly filed state habeas corpus 2 petition is pending. 28 U.S.C. § 2244(d)(2); see Nino v. Galaza, 183 F.3d 1003, 1006 (9th 3 Cir. 1999). But see Artuz v. Bennett, 531 U.S. 4, 8 (2000) (“[A]n application is ‘properly 4 filed’ when its delivery and acceptance [by the appropriate court officer for placement into 5 the record] are in compliance with the applicable laws and rules governing filings.”). 6 However, absent some other basis for tolling, the statute of limitations does run while a 7 federal habeas petition is pending. Duncan v. Walker, 533 U.S. 167, 181-82 (2001). 8 Rule 4 of the Rules Governing Section 2254 provides for summary dismissal of a 9 habeas petition “[i]f it plainly appears from the face of the petition and any exhibits 10 annexed to it that the petitioner is not entitled to relief in the district court . . .” Rule 4, 28 11 U.S.C. foll. § 2254. Here, it appears plain from the Petition that Petitioner is not presently 12 entitled to federal habeas relief because he has not alleged exhaustion of state court 13 remedies. 14 15 III. CONCLUSION 16 Accordingly, the Court CONSTRUES the instant action as a habeas petition 17 brought pursuant to 28 U.S.C. § 2254. The Court GRANTS Petitioner’s request to 18 proceed in forma pauperis (ECF No. 2), and DISMISSES the case without prejudice. To 19 have this case reopened, Petitioner must file an amended petition which cures the pleading 20 deficiency discussed above no later than November 3, 2017. 21 convenience, a blank 28 U.S.C. § 2254 form petition is attached to this Order. 22 For Petitioner’s IT IS SO ORDERED. 23 24 DATED: September 5, 2017 25 26 27 28 4 17cv1547

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