Dina Sarkisova v. Kelly A. Martinez, et al.

• Court: District Court, S.D. California
• Decided: May 22, 2026
• Docket: 3:26-cv-03118
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 DINA SARKISOVA, Case No.: 26-cv-3118-BJC-VET

12 Petitioner, ORDER: (1) CONSTRUING 13 v. PETITION AS FILED PURSUANT TO 28 U.S.C. § 2254; AND 14

15 KELLY A. MARTINEZ, et al., (2) DISMISSING PETITION WITHOUT PREJUDICE 16 Respondents. 17 18 19 20 Petitioner, an inmate confined at the Los Colinas Detention and Reentry Facility in 21 Santee, California, has filed a Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. 22 §§ 2241 & 2254 and paid the requisite filing fee. (ECF Nos. 1, 1-3.) Petitioner claims she 23 has been unlawfully held in custody and challenges her “state criminal conviction, bench 24 warrant and custody.” (See ECF No. 1 at 2.) 25 BASIS FOR PETITION 26 Although Petitioner filed this action pursuant to both 28 U.S.C. §§ 2241 & 2254, she 27 states she is in custody pursuant to a “state criminal conviction.” See ECF No. 1 at 2. Thus, 28 she may only proceed with a habeas action in federal court under 28 U.S.C. § 2254. See 1 White v. Lambert, 370 F.3d 1002, 1006–07 (9th Cir. 2004) (holding that section 2254 is 2 the proper jurisdictional basis for a habeas petition brought by an individual “in custody 3 pursuant to a state court judgment”). Section 2254 is properly understood as “in effect 4 implement[ing] the general grant of habeas corpus authority found in § 2241 as long as the 5 person is in custody pursuant to the judgment of a state court, and not in state custody for 6 some other reason, such as pre-conviction custody, custody awaiting extradition, or other 7 forms of custody that are possible without a conviction.” Id. at 1006 (quoting Walker v. 8 O’Brien, 216 F.3d 626, 633 (7th Cir. 2000) (emphasis in original). Accordingly, the Court 9 CONSTRUES the petition as one filed pursuant to 28 U.S.C. § 2254. 10 FAILURE TO ALLEGE EXHAUSTION OF STATE JUDICIAL REMEDIES 11 The Petition, however, must be dismissed for failure to allege exhaustion of state 12 judicial remedies. Habeas petitioners who wish to challenge either their state court 13 conviction or the length of their confinement in state prison must first exhaust state judicial 14 remedies. 28 U.S.C. § 2254(b), (c); Granberry v. Greer, 481 U.S. 129, 133-34 (1987). To 15 exhaust state judicial remedies, a California state prisoner must present the California 16 Supreme Court with a fair opportunity to rule on the merits of every issue raised in his or 17 her federal habeas petition. 28 U.S.C. § 2254(b), (c); Granberry, 481 U.S. at 133–34. 18 Moreover, to properly exhaust state court remedies, a petitioner must allege, in state court, 19 how one or more of his or her federal rights have been violated. The Supreme Court in 20 Duncan v. Henry, 513 U.S. 364 (1995) reasoned: “If state courts are to be given the 21 opportunity to correct alleged violations of prisoners’ federal rights, they must surely be 22 alerted to the fact that the prisoners are asserting claims under the United States 23 Constitution.” Id. at 365–66 (emphasis added). For example, “[i]f a habeas petitioner 24 wishes to claim that an evidentiary ruling at a state court trial denied him [or her] the due 25 process of law guaranteed by the Fourteenth Amendment, he [or she] must say so, not only 26 in federal court, but in state court.” Id. at 366 (emphasis added). 27 Nowhere on the Petition does Petitioner allege that she has raised her claims in the 28 California Supreme Court. If Petitioner has raised her claims in the California Supreme 1 Court, she must so specify. “The burden of proving that a claim has been exhausted lies 2 with the petitioner.” Matthews v. Evatt, 105 F.3d 907, 911 (4th Cir. 1997); see Breard v. 3 Pruett, 134 F.3d 615, 619 (4th Cir. 1998); Lambert v. Blackwell, 134 F.3d 506, 513 (3d 4 Cir. 1997); Oyler v. Allenbrand, 23 F.3d 292, 300 (10th Cir. 1994); Rust v. Zent, 17 F.3d 5 155, 160 (6th Cir. 1994). 6 Further, the Court cautions Petitioner that under the Antiterrorism and Effective 7 Death Penalty Act of 1996 (AEDPA), a one-year period of limitation shall apply to a 8 petition for a writ of habeas corpus by a person in custody pursuant to the judgment of a 9 State court. The limitation period shall run from the latest of: 10 (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; 11

12 (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 13 removed, if the applicant was prevented from filing by such State action; 14 (C) the date on which the constitutional right asserted was initially 15 recognized by the Supreme Court, if the right has been newly recognized by 16 the Supreme Court and made retroactively applicable to cases on collateral review; or 17

18 (D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence. 19

20 28 U.S.C. § 2244(d)(1)(A)–(D) (West 2006). 21 The statute of limitations does not run while a properly filed state habeas corpus 22 petition is pending. 28 U.S.C. § 2244(d)(2); see Nino v. Galaza, 183 F.3d 1003, 1006 (9th 23 Cir. 1999). But see Artuz v. Bennett, 531 U.S. 4, 8 (2000) (holding that “an application is 24 ‘properly filed’ when its delivery and acceptance [by the appropriate court officer for 25 placement into the record] are in compliance with the applicable laws and rules governing 26 filings.”). However, absent some other basis for tolling, the statute of limitations does run 27 while a federal habeas petition is pending. Duncan v. Walker, 533 U.S. 167, 181–82 (2001). 28 Rule 4 of the Rules Governing Section 2254 Cases provides for summary dismissal | a habeas petition “[i]f it plainly appears from the face of the petition and any exhibits 2 || annexed to it that the petitioner is not entitled to relief in the district court...” Rule 4, 28 3 U.S.C. foll. § 2254. Here, it appears plain from the Petition that Petitioner is not presently 4 |lentitled to federal habeas relief because she has not alleged exhaustion of state court 5 || remedies. 6 CONCLUSION 7 For the reasons discussed above the Court CONSTRUES the Petition as brought 8 || pursuant to 28 U.S.C. § 2254 and DISMISSES the Petition without prejudice for failure to 9 || allege exhaustion of state judicial remedies. To have the case reopened, Petitioner must, no 10 || later than June 30, 2026, file an Amended Petition which adequately alleges exhaustion of 11 || state judicial remedies as to all claims raised in the Amended Petition.! 12 IT IS SO ORDERED. 13 ||Dated: May 22, 2026 14

16 17 Honorable Benjamin J. Cheeks United States District Judge 18 19 20 21 22 23 24 25 26 ' Tf exhaustion of state judicial remedies is not properly alleged in an Amended Complaint by June 30, 27 2026, the case will be dismissed without further leave to amend and Petitioner will have to start over by 28 filing a new habeas petition in this Court upon completion of the exhaustion process. See Jn re Turner, 101 F.3d 1323 (9th Cir. 1997).