Kenneth Lewis v. RJD

• Court: District Court, S.D. California
• Decided: October 9, 2025
• Docket: 3:25-cv-02209
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 KENNETH LEWIS, Case No.: 25-CV-2209 JLS (VET)

12 Petitioner, ORDER: 13 v. (1) DENYING REQUEST TO 14 RJD, PROCEED IN FORMA PAUPERIS, 15 Respondent. AND

16 (2) DISMISSING CASE WITHOUT 17 PREJUDICE

18 (ECF Nos. 3, 4)

20 Presently before the Court is Petitioner Kenneth Lewis’s First Amended Petition for 21 Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (“FAP,” ECF No. 3). Also before 22 the Court is Petitioner’s Motion to Proceed in Forma Pauperis (“IFP”) (“IFP Mot.,” ECF 23 No. 4). Petitioner, a state prisoner proceeding pro se, filed a Petition for Writ of Habeas 24 Corpus pursuant to 28 U.S.C. § 2254 (“Pet.,” ECF No. 1) on August 21, 2025. On 25 September 4, 2025, the Court dismissed the action because Petitioner failed to satisfy the 26 filing fee requirement and failed to state a cognizable claim. See ECF No. 2. The Court 27 notified Petitioner that, for his case to proceed, he must (1) either pay the filing fee or file 28 an application to proceed IFP and (2) file an amended petition by October 17, 2025. Id. at 1 4. On September 25, 2025, Petitioner filed an IFP Motion and a First Amended Petition. 2 See ECF Nos. 3, 4. For the reasons that follow, the Court DENIES Petitioner’s IFP Motion 3 (ECF No. 4) and First Amended Petition (ECF No. 3) and DISMISSES the case without 4 prejudice. 5 I. Motion to Proceed in Forma Pauperis 6 Petitioner’s request to proceed IFP must be denied because Petitioner has not 7 provided the Court with sufficient information to determine his financial status. A request 8 to proceed IFP made by a state prisoner must include a signed certificate from the warden 9 or other appropriate officer showing the amount of money or securities Petitioner has on 10 account in the institution. See Rules Governing Section 2254 Proceedings (“Habeas 11 Rules”), Rule 3(a)(2); S.D. Cal. CivLR 3.2. Here, Petitioner has failed to provide the Court 12 with the required signed prison certificate and/or a copy of his trust account statement. See 13 IFP Mot. Therefore, Petitioner’s IFP motion is DENIED. 14 II. Petition for Writ of Habeas Corpus 15 A. Failure to State a Cognizable Federal Claim 16 In addition, Petitioner’s FAP again fails to state a cognizable federal claim. As 17 discussed in this Court’s previous order, to present a cognizable federal habeas corpus 18 claim under section 2254, a state prisoner must allege both that he is in custody pursuant 19 to a “judgment of a State court,” and that he is in custody in “violation of the Constitution 20 or laws or treaties of the United States.” 28 U.S.C. § 2254(a); see also Hernandez v. Ylst, 21 930 F.2d 714, 719 (9th Cir. 1991). And here, as grounds for relief, Petitioner requests “the 22 courts to maybe rule for the rights of the prisoner” and seeks a “change in the law.” FAP 23 at 6–7. Nowhere in the FAP, however, does Petitioner allege he is in custody in violation 24 of the Constitution or laws of the United States. Therefore, even if Petitioner qualified to 25 proceed IFP, the FAP would be subject to dismissal. See Habeas Rules, Rule 4(b) (stating 26 that courts may summarily dismiss a habeas petition “[i]f it plainly appears from the 27 petition and any attached exhibits that the petitioner is not entitled to relief in the district 28 court”). 1 B. Failure to Allege Exhaustion of State Judicial Remedies 2 Petitioner has also failed to allege exhaustion of his state judicial remedies. Habeas 3 || petitioners who wish to challenge either their state court conviction or the length of their 4 ||confinement in state prison must first exhaust state judicial remedies. 28 U.S.C. § 2254(b), 5 ||(c); Granberry v. Greer, 481 U.S. 129, 133-34 (1987). To exhaust state judicial remedies, 6 California state prisoner must present the California Supreme Court with a fair 7 || opportunity to rule on the merits of every issue raised in his or her federal habeas petition. 8 U.S.C. § 2254(b), (c); Granberry, 481 U.S. at 133-34. And here, Petitioner states he 9 || has not presented any of his “grounds for relief” to the California Supreme Court. See FAP 10 5-7. Therefore, the FAP is subject to dismissal for failure to exhaust state judicial 11 ||remedies. See Habeas Rules, Rule 4(b). 12 Il. Conclusion 13 For the foregoing reasons, the Court DENIES Petitioner’s IFP Motion (ECF No. 4) 14 First Amended Petition (ECF No. 3). The Court DISMISSES the case without 15 || prejudice and without leave to amend for failure to satisfy the filing fee requirement, failure 16 state a cognizable claim, and failure to allege exhaustion. If Petitioner wishes to pursue 17 || habeas claims in the future, he must file a new petition, which will receive a new civil case 18 ||number. The Clerk SHALL close the file. 19 IT IS SO ORDERED. 20 || Dated: October 9, 2025 □ □□ , 21 pin Janis L. Sammartino 09 United States District Judge 23 24 25 26 27 28