Jose G. Velazquez v. Superior Court of California

Filing 10

ORDER Dismissing Petition Without Prejudice and Notifying Petitioner of Options to Avoid Future Dismissal. Signed by Judge Anthony J. Battaglia on 1/11/2018. (Blank Amended Petition Form sent to Petitioner). (All non-registered users served via U.S. Mail Service)(dsn)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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JOSE G. VELAZQUEZ,

Case No.: 17cv2516-AJB (BGS)
Petitioner,

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ORDER DISMISSING PETITION
WITHOUT PREJUDIE AND
NOTIFYING PETITIONER OF
OPTIONS TO AVOID FUTURE
DISMISSAL

v.
SUPERIOR COURT,
Respondent.

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On November 17, 2017, Petitioner, a state prisoner proceeding pro se, filed a Petition

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for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 in the District Court for the

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Central District of California. (ECF No. 1.) On December 18, 2017, the Petition was

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transferred to this Court because Petitioner is challenging a conviction from the San Diego

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County Superior Court. (ECF No. 4.) Petitioner filed a Motion to Proceed In Forma

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Pauperis on January 8, 2018.

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MOTION TO PROCEED IN FORMA PAUPERIS
According to Petitioner’s prison trust account statement, Petitioner has no funds on

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account at the California correctional institution in which he is presently confined.

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Petitioner cannot afford the $5.00 filing fee. Thus, the Court GRANTS Petitioner’s

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application to proceed in forma pauperis, and allows Petitioner to prosecute the above-

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referenced action as a poor person without being required to prepay fees or costs and
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without being required to post security. The Clerk of the Court will file the Petition for

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Writ of Habeas Corpus without prepayment of the filing fee.

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FAILURE TO NAME PROPER RESPONDENT

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Review of the Petition reveals that Petitioner has failed to name a proper respondent.

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On federal habeas, a state prisoner must name the state officer having custody of him as

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the respondent. Ortiz-Sandoval v. Gomez, 81 F.3d 891, 894 (9th Cir. 1996) (citing Rule

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2(a), 28 U.S.C. foll. § 2254). “Typically, that person is the warden of the facility in which

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the petitioner is incarcerated.” Id. Federal courts lack personal jurisdiction when a habeas

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petition fails to name a proper respondent. See id.

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The warden is the typical respondent. However, “the rules following section 2254

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do not specify the warden.” Id. “[T]he ‘state officer having custody’ may be ‘either the

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warden of the institution in which the petitioner is incarcerated . . . or the chief officer in

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charge of state penal institutions.’” Id. (quoting Rule 2(a), 28 U.S.C. foll. § 2254 advisory

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committee’s note). If “a petitioner is in custody due to the state action he is challenging,

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‘[t]he named respondent shall be the state officer who has official custody of the petitioner

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(for example, the warden of the prison).’” Id. (quoting Rule 2, 28 U.S.C. foll. § 2254

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advisory committee’s note).

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A long standing rule in the Ninth Circuit holds “that a petitioner may not seek [a writ

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of] habeas corpus against the State under . . . [whose] authority . . . the petitioner is in

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custody.

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respondent.” Ashley v. Washington, 394 F.2d 125, 126 (9th Cir. 1968). This requirement

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exists because a writ of habeas corpus acts upon the custodian of the state prisoner, the

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person who will produce “the body” if directed to do so by the Court. “Both the warden

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of a California prison and the Director of Corrections for California have the power to

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produce the prisoner.” Ortiz-Sandoval, 81 F.3d at 895.

The actual person who is [the] custodian [of the petitioner] must be the

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Here, Petitioner has incorrectly named “Superior Court” as Respondent. In order

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for this Court to entertain the Petition filed in this action, Petitioner must name the warden

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in charge of the state correctional facility in which Petitioner is presently confined or the
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Director of the California Department of Corrections and Rehabilitation. Brittingham v.

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United States, 982 F.2d 378, 379 (9th Cir. 1992) (per curiam).

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FAILURE TO ALLEGE EXHAUSTION OF STATE JUDICIAL REMEDIES

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Further, habeas petitioners who wish to challenge either their state court conviction

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or the length of their confinement in state prison, must first exhaust state judicial remedies.

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28 U.S.C. § 2254(b), (c); Granberry v. Greer, 481 U.S. 129, 133-34 (1987). To exhaust

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state judicial remedies, a California state prisoner must present the California Supreme

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

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

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properly exhaust state court remedies a petitioner must allege, in state court, how one or

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more of his or her federal rights have been violated. The Supreme Court in Duncan v.

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Henry, 513 U.S. 364 (1995) reasoned: “If state courts are to be given the opportunity to

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correct alleged violations of prisoners’ federal rights, they must surely be alerted to the fact

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that the prisoners are asserting claims under the United States Constitution.” Id. at 365-66

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(emphasis added).

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evidentiary ruling at a state court trial denied him [or her] the due process of law guaranteed

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by the Fourteenth Amendment, he [or she] must say so, not only in federal court, but in

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state court.” Id. at 366 (emphasis added).

For example, “[i]f a habeas petitioner wishes to claim that an

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Nowhere on the Petition does Petitioner allege that he raised his claims in the

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California Supreme Court. In fact, he specifically indicates he did not seek review in the

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California Supreme Court. (See Pet. at 2-3.) If Petitioner has raised his claims in the

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California Supreme Court he must so specify. “The burden of proving that a claim has

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been exhausted lies with the petitioner.” Matthews v. Evatt, 105 F.3d 907, 911 (4th Cir.

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

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F.3d 506, 513 (3d Cir. 1997); Oyler v. Allenbrand, 23 F.3d 292, 300 (10th Cir. 1994); Rust

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v. Zent, 17 F.3d 155, 160 (6th Cir. 1994).

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Further, the Court cautions Petitioner that under the Antiterrorism and Effective

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Death Penalty Act of 1996 (AEDPA) a one-year period of limitation shall apply to a
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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, if the 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
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)(1)(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); see Nino v. Galaza, 183 F.3d 1003, 1006 (9th

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Cir. 1999). But see 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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CONCLUSION AND ORDER

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Based on the foregoing, the Court GRANTS Petitioner’s request to proceed in forma

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pauperis and DISMISSES this action without prejudice because Petitioner has failed to

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name a proper respondent, and failed to allege exhaustion of state judicial remedies. To

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have this case reopened, Petitioner must submit, no later than March 12, 2018, file a First

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Amended Petition which cures the pleading deficiencies outlined above. The Clerk of

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Court shall send a a blank Southern District of California amended petition form to

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Petitioner along with a copy of this Order.

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IT IS SO ORDERED.
Dated: January 11, 2018

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17cv2516-AJB (BGS)