1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 EFRAIN BARRIOS, Case No.: 3:20-cv-0777-GPC-LL
12 Petitioner, ORDER DISMISSING CASE 13 v. WITHOUT PREJUDICE AND WITH LEAVE TO AMEND 14 FEDERAL JUDGE, et al., 15 Respondents. 16 17 Petitioner, a state prisoner proceeding pro se, has filed a Petition for Writ of 18 Habeas Corpus pursuant to 28 U.S.C. § 2254. 19 FAILURE TO SATISFY THE FILING FEE REQUIREMENT 20 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 July 13, 2020, a copy of this Order 25 with the $5.00 fee or with adequate proof of his inability to pay the fee. 26 FAILURE TO NAME A PROPER RESPONDENT 27 Furthermore, 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 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 advisory 8 committee’s note). If “a petitioner is in custody due to the state action he is challenging, 9 ‘[t]he named respondent shall be the state officer who has official custody of the petitioner 10 (for example, the warden of the prison).’” Id. (quoting Rule 2, 28 U.S.C. foll. § 2254 11 advisory committee’s note). 12 A long standing rule in the Ninth Circuit holds “that a petitioner may not seek [a writ 13 of] habeas corpus against the State under . . . [whose] authority . . . the petitioner is in 14 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 “Federal Judge” and “Chief Immigration 21 Judge” as Respondents. In order for this Court to entertain the Petition filed in this action, 22 Petitioner must name the warden in charge of the state correctional facility in which 23 Petitioner is presently confined or the Secretary of the California Department of 24 Corrections and Rehabilitation. Brittingham v. United States, 982 F.2d 378, 379 (9th Cir. 25 1992) (per curiam). 26 / / / 27 / / / 28 / / / 1 FAILURE TO STATE A COGNIZABLE CLAIM ON FEDERAL HABEAS 2 Additionally, in accordance with Rule 4 of the rules governing § 2254 cases, 3 Petitioner has failed to allege that his state court conviction or sentence violates the 4 Constitution of the United States. 5 Title 28, United States Code, § 2254(a), sets forth the following scope of review 6 for federal habeas corpus claims: 7 The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an application for a writ of habeas 8 corpus in behalf of a person in custody pursuant to the 9 judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the 10 United States. 11 12 28 U.S.C. § 2254(a) (emphasis added). See Hernandez v. Ylst, 930 F.2d 714, 719 (9th 13 Cir. 1991); Mannhalt v. Reed, 847 F.2d 576, 579 (9th Cir. 1988); Kealohapauole v. 14 Shimoda, 800 F.2d 1463, 1464-65 (9th Cir. 1986). Thus, to present a cognizable federal 15 habeas corpus claim under § 2254, a state prisoner must allege both that he is in custody 16 pursuant to a “judgment of a State court,” and that he is in custody in “violation of the 17 Constitution or laws or treaties of the United States.” See 28 U.S.C. § 2254(a). 18 Here, Petitioner’s claim concerns his immigration status. Petitioner argues that he 19 was born in the United States and is therefore a United States citizen. (See Pet., ECF No. 20 1 at 3.) In no way, however, does Petitioner claim his incarceration in a California 21 Department of Corrections and Rehabilitation facility is “in violation of the Constitution 22 or laws or treaties of the United States.” 28 U.S.C. § 2254. 23 Further, the Court notes that Petitioner cannot simply amend his Petition to state a 24 federal habeas claim and then refile the amended petition in this case. He must exhaust 25 state judicial remedies before bringing his claims via federal habeas. State prisoners who 26 wish to challenge their state court conviction must first exhaust state judicial remedies. 27 28 U.S.C. § 2254(b), (c); Granberry v. Greer, 481 U.S. 129, 133-34 (1987). To exhaust 28 state judicial remedies, a California state prisoner must present the California Supreme 1 Court with a fair opportunity to rule on the merits of every issue raised in his or her 2 federal habeas petition. See 28 U.S.C. § 2254(b), (c); Granberry, 481 U.S. at 133-34. 3 Moreover, to properly exhaust state court judicial remedies a petitioner must allege, in 4 state court, how one or more of his or her federal rights have been violated. The Supreme 5 Court in Duncan v. Henry, 513 U.S. 364 (1995) reasoned: “If state courts are to be given 6 the opportunity to correct alleged violations of prisoners’ federal rights, they must surely 7 be alerted to the fact that the prisoners are asserting claims under the United States 8 Constitution.” Id. at 365-66 (emphasis added). For example, “[i]f a habeas petitioner 9 wishes to claim that an evidentiary ruling at a state court trial denied him the due process 10 of law guaranteed by the Fourteenth Amendment, he must say so, not only in federal 11 court, but in state court.” Id. (emphasis added).
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 EFRAIN BARRIOS, Case No.: 3:20-cv-0777-GPC-LL
12 Petitioner, ORDER DISMISSING CASE 13 v. WITHOUT PREJUDICE AND WITH LEAVE TO AMEND 14 FEDERAL JUDGE, et al., 15 Respondents. 16 17 Petitioner, a state prisoner proceeding pro se, has filed a Petition for Writ of 18 Habeas Corpus pursuant to 28 U.S.C. § 2254. 19 FAILURE TO SATISFY THE FILING FEE REQUIREMENT 20 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 July 13, 2020, a copy of this Order 25 with the $5.00 fee or with adequate proof of his inability to pay the fee. 26 FAILURE TO NAME A PROPER RESPONDENT 27 Furthermore, 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 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 advisory 8 committee’s note). If “a petitioner is in custody due to the state action he is challenging, 9 ‘[t]he named respondent shall be the state officer who has official custody of the petitioner 10 (for example, the warden of the prison).’” Id. (quoting Rule 2, 28 U.S.C. foll. § 2254 11 advisory committee’s note). 12 A long standing rule in the Ninth Circuit holds “that a petitioner may not seek [a writ 13 of] habeas corpus against the State under . . . [whose] authority . . . the petitioner is in 14 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 “Federal Judge” and “Chief Immigration 21 Judge” as Respondents. In order for this Court to entertain the Petition filed in this action, 22 Petitioner must name the warden in charge of the state correctional facility in which 23 Petitioner is presently confined or the Secretary of the California Department of 24 Corrections and Rehabilitation. Brittingham v. United States, 982 F.2d 378, 379 (9th Cir. 25 1992) (per curiam). 26 / / / 27 / / / 28 / / / 1 FAILURE TO STATE A COGNIZABLE CLAIM ON FEDERAL HABEAS 2 Additionally, in accordance with Rule 4 of the rules governing § 2254 cases, 3 Petitioner has failed to allege that his state court conviction or sentence violates the 4 Constitution of the United States. 5 Title 28, United States Code, § 2254(a), sets forth the following scope of review 6 for federal habeas corpus claims: 7 The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an application for a writ of habeas 8 corpus in behalf of a person in custody pursuant to the 9 judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the 10 United States. 11 12 28 U.S.C. § 2254(a) (emphasis added). See Hernandez v. Ylst, 930 F.2d 714, 719 (9th 13 Cir. 1991); Mannhalt v. Reed, 847 F.2d 576, 579 (9th Cir. 1988); Kealohapauole v. 14 Shimoda, 800 F.2d 1463, 1464-65 (9th Cir. 1986). Thus, to present a cognizable federal 15 habeas corpus claim under § 2254, a state prisoner must allege both that he is in custody 16 pursuant to a “judgment of a State court,” and that he is in custody in “violation of the 17 Constitution or laws or treaties of the United States.” See 28 U.S.C. § 2254(a). 18 Here, Petitioner’s claim concerns his immigration status. Petitioner argues that he 19 was born in the United States and is therefore a United States citizen. (See Pet., ECF No. 20 1 at 3.) In no way, however, does Petitioner claim his incarceration in a California 21 Department of Corrections and Rehabilitation facility is “in violation of the Constitution 22 or laws or treaties of the United States.” 28 U.S.C. § 2254. 23 Further, the Court notes that Petitioner cannot simply amend his Petition to state a 24 federal habeas claim and then refile the amended petition in this case. He must exhaust 25 state judicial remedies before bringing his claims via federal habeas. State prisoners who 26 wish to challenge their state court conviction must first exhaust state judicial remedies. 27 28 U.S.C. § 2254(b), (c); Granberry v. Greer, 481 U.S. 129, 133-34 (1987). To exhaust 28 state judicial remedies, a California state prisoner must present the California Supreme 1 Court with a fair opportunity to rule on the merits of every issue raised in his or her 2 federal habeas petition. See 28 U.S.C. § 2254(b), (c); Granberry, 481 U.S. at 133-34. 3 Moreover, to properly exhaust state court judicial remedies a petitioner must allege, in 4 state court, how one or more of his or her federal rights have been violated. The Supreme 5 Court in Duncan v. Henry, 513 U.S. 364 (1995) reasoned: “If state courts are to be given 6 the opportunity to correct alleged violations of prisoners’ federal rights, they must surely 7 be alerted to the fact that the prisoners are asserting claims under the United States 8 Constitution.” Id. at 365-66 (emphasis added). For example, “[i]f a habeas petitioner 9 wishes to claim that an evidentiary ruling at a state court trial denied him the due process 10 of law guaranteed by the Fourteenth Amendment, he must say so, not only in federal 11 court, but in state court.” Id. (emphasis added). 12 Additionally, the Court cautions Petitioner that under the Antiterrorism and 13 Effective Death Penalty Act of 1996, a one-year period of limitation shall apply to a 14 petition for a writ of habeas corpus by a person in custody pursuant to the judgment of a 15 State court. The limitation period shall run from the latest of: 16 (A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for 17 seeking such review; 18 (B) the date on which the impediment to filing an 19 application created by State action in violation of the 20 Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action; 21
22 (C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has 23 been newly recognized by the Supreme Court and made 24 retroactively applicable to cases on collateral review; or
25 (D) the date on which the factual predicate of the claim 26 or claims presented could have been discovered through the exercise of due diligence. 27
28 28 U.S.C. § 2244(d)(1)(A)-(D) (West Supp. 2002). 1 The Court also notes that the statute of limitations does not run while a properly 2 || filed state habeas corpus petition is pending. 28 U.S.C. § 2244(d)(2); see Nino v. Galaza, 3 F.3d 1003, 1006 (9th Cir. 1999). But see Artuz v. Bennett, 531 U.S. 4, 8 (2000) 4 || (holding that “an application is ‘properly filed’ when its delivery and acceptance [by the 5 || appropriate court officer for placement into the record] are in compliance with the 6 || applicable laws and rules governing filings.”). However, absent some other basis for 7 tolling, the statute of limitations does run while a federal habeas petition is pending. 8 || Duncan v. Walker, 533 U.S. 167, 181-82 (2001). 9 CONCLUSION 10 Accordingly, the Court DISMISSES the Petition without prejudice due to 11 || Petitioner’s failure to satisfy the filing fee requirement, failure to name a proper 12 ||respondent and failure to state a cognizable claim. To have this case reopened, Petitioner 13 || must, no later than July 13,2020: (1) either pay the filing fee or provide adequate proof 14 || of his inability to pay and_ (2) file a First Amended Petition in conformance with this 15 Order. For Petitioner’s convenience, a blank petition form and a blank in forma 16 || pauperis application are included with this Order. 17 || IT IS SO ORDERED. 18 || Dated: May 21, 2020 2 19 Hon. athe Cae 20 United States District Judge 21 22 23 24 25 26 27 28