Bridgewater v. People Of California

Filing 7

ORDER DISMISSING CASE Without Prejudice. Signed by Judge Janis L. Sammartino on 11/16/2017. (IFP Form Mailed) (All non-registered users served via U.S. Mail Service)(mpl)

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1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT 10 SOUTHERN DISTRICT OF CALIFORNIA 11 12 KEITH BRIDGEWATER, Case No.: 17-CV-2287-JLS (JMA) Petitioner, 13 14 15 ORDER DISMISSING CASE WITHOUT PREJUDICE v. PEOPLE OF CALIFORNIA, 16 Respondent. 17 18 On September 18, 2017, Petitioner Keith Bridgewater, a state prisoner proceeding 19 pro se, filed a Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 in the 20 Ninth Circuit Court of Appeals, (ECF No. 1). Petitioner is incarcerated at Folsom State 21 Prison in Sacramento County, California, and challenges a conviction from the Superior 22 Court of Imperial County, California. (Id. at 2.) On October 25, 2017, the Ninth Circuit 23 Court of Appeals transferred the Petition to the United States District Court for the Eastern 24 District of California, where Petitioner is confined. (ECF No. 2.) On November 9, 2017, 25 the United States District Court for the Eastern District of California transferred the Petition 26 to this District, where Petitioner was convicted. (ECF No. 4.) The Petition is subject to 27 dismissal without prejudice because Petitioner has failed to satisfy the filing fee 28 requirement, failed to name a proper respondent, and failed to allege exhaustion of state 1 17-CV-2287-JLS (JMA) 1 2 court remedies. FAILURE TO SATISFY FILING FEE REQUIREMENT 3 Because this Court cannot proceed until Petitioner has either paid the $5.00 filing 4 fee or qualified to proceed in forma pauperis, the Court DISMISSES the case without 5 prejudice. See Rule 3(a), Rules Governing §2254 Cases, 28 U.S.C. foll. § 2254. 6 FAILURE TO NAME PROPER RESPONDENT 7 Review of the Petition reveals that Petitioner has failed to name a proper respondent. 8 On federal habeas, a state prisoner must name the state officer having custody of him as 9 the respondent. Ortiz-Sandoval v. Gomez, 81 F.3d 891, 894 (9th Cir. 1996) (citing Rule 10 2(a), 28 U.S.C. foll. § 2254). “Typically, that person is the warden of the facility in which 11 the petitioner is incarcerated.” Id. Federal courts lack personal jurisdiction when a habeas 12 petition fails to name a proper respondent. See id. 13 The warden is the typical respondent. However, “the rules following section 2254 14 do not specify the warden.” Id. “[T]he ‘state officer having custody’ may be ‘either the 15 warden of the institution in which the petitioner is incarcerated . . . or the chief officer in 16 charge of state penal institutions.’” Id. (quoting Rule 2(a), 28 U.S.C. foll. § 2254 advisory 17 committee’s note). If “a petitioner is in custody due to the state action he is challenging, 18 ‘[t]he named respondent shall be the state officer who has official custody of the petitioner 19 (for example, the warden of the prison).’” Id. (quoting Rule 2, 28 U.S.C. foll. § 2254 20 advisory committee’s note). 21 Here, Petitioner has incorrectly named “People of California” as Respondent. A 22 long standing rule in the Ninth Circuit holds “that a petitioner may not seek [a writ of] 23 habeas corpus against the State under . . . [whose] authority . . . the petitioner is in custody. 24 The actual person who is [the] custodian [of the petitioner] must be the respondent.” Ashley 25 v. Washington, 394 F.2d 125, 126 (9th Cir. 1968). This requirement exists because a writ 26 of habeas corpus acts upon the custodian of the state prisoner, the person who will produce 27 “the body” if directed to do so by the Court. “Both the warden of a California prison and 28 the Director of Corrections for California have the power to produce the prisoner.” Ortiz2 17-CV-2287-JLS (JMA) 1 Sandoval, 81 F.3d at 895. 2 In order for this Court to entertain the Petition filed in this action, Petitioner must 3 name the warden in charge of the state correctional facility in which Petitioner is presently 4 confined or the Director of the California Department of Corrections and Rehabilitation. 5 Brittingham v. United States, 982 F.2d 378, 379 (9th Cir. 1992) (per curiam). 6 FAILURE TO ALLEGE EXHAUSTION OF STATE JUDICIAL REMEDIES 7 Finally, habeas petitioners who wish to challenge either their state court conviction 8 or the length of their confinement in state prison must first exhaust state judicial remedies. 9 28 U.S.C. § 2254(b), (c); Granberry v. Greer, 481 U.S. 129, 133-34 (1987). To exhaust 10 state judicial remedies, a California state prisoner must present the California Supreme 11 Court with a fair opportunity to rule on the merits of every issue raised in his or her federal 12 habeas petition. 28 U.S.C. § 2254(b), (c); Granberry, 481 U.S. at 133–34. Moreover, to 13 properly exhaust state court remedies a petitioner must allege, in state court, how one or 14 more of his or her federal rights have been violated. The Supreme Court in Duncan v. 15 Henry, 513 U.S. 364 (1995) reasoned: “If state courts are to be given the opportunity to 16 correct alleged violations of prisoners’ federal rights, they must surely be alerted to the fact 17 that the prisoners are asserting claims under the United States Constitution.” Id. at 365–66 18 (emphasis added). 19 evidentiary ruling at a state court trial denied him [or her] the due process of law guaranteed 20 by the Fourteenth Amendment, he [or she] must say so, not only in federal court, but in 21 state court.” Id. at 366 (emphasis added). For example, “[i]f a habeas petitioner wishes to claim that an 22 Petitioner does not allege that he raised his claims in the California Supreme Court. 23 If Petitioner has raised his claims in the California Supreme Court he must so specify. The 24 burden of proving that a claim has been exhausted lies with the petitioner. Cartwright v. 25 Cupp, 650 F.2d 1103, 1104 (9th Cir. 1981). 26 The Court cautions Petitioner that under the Antiterrorism and Effective Death 27 Penalty Act of 1996 (AEDPA) a one-year period of limitation shall apply to a petition for 28 a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. 3 17-CV-2287-JLS (JMA) 1 2 3 4 5 The limitation period shall run from the latest of: (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; 6 7 8 9 10 11 12 (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). 13 The statute of limitations does not run while a properly filed state habeas corpus 14 petition is pending. 28 U.S.C. § 2244(d)(2); see Nino v. Galaza, 183 F.3d 1003, 1006 (9th 15 Cir. 1999). But see Artuz v. Bennett, 531 U.S. 4, 8 (2000) (holding that “an application is 16 ‘properly filed’ when its delivery and acceptance [by the appropriate court officer for 17 placement into the record] are in compliance with the applicable laws and rules governing 18 filings.”). However, absent some other basis for tolling, the statute of limitations does run 19 while a federal habeas petition is pending. Duncan v. Walker, 533 U.S. 167, 181-82 (2001). 20 CONCLUSION AND ORDER 21 Rule 4 of the Rules Governing Section 2254 Cases provides for summary dismissal 22 of a habeas petition “[i]f it plainly appears from the face of the petition and any attached 23 exhibits that the petitioner is not entitled to relief in the district court . . . .” Rule 4, 28 24 U.S.C. foll. § 2254. Here, it appears plain from the Petition that Petitioner is not presently 25 entitled to federal habeas relief because he has not alleged exhaustion of state court 26 remedies, has not satisfied the filing fee requirement, and has not named a proper 27 respondent. Based on the foregoing, the Court DISMISSES this action WITHOUT 28 PREJUDICE. To have this case reopened, Petitioner must submit, no later than January 4 17-CV-2287-JLS (JMA) 1 15, 2018, a copy of this Order with the $5.00 fee or with adequate proof of his inability to 2 pay the fee and file a First Amended Petition which cures the pleading defects identified 3 above. The Clerk of Court shall send a blank Southern District of California In Forma 4 Pauperis Application and a blank Southern District of California amended petition form to 5 Petitioner along with a copy of this Order. 6 7 IT IS SO ORDERED. Dated: November 16, 2017 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5 17-CV-2287-JLS (JMA)

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