1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 JOSUE ISRAEL SANCHEZ, Case No.: 25cv2335 WQH (DEB)
12 Petitioner, ORDER DISMISSING CASE 13 v. WITHOUT PREJUDICE AND DENYING MOTION TO APPOINT 14 SAN DIEGO DISTRICT ATTORNEY, COUNSEL WITHOUT PREJUDICE 15 Respondent. [ECF No. 2] 16 17 HAYES, Judge: 18 On July 25, 2025, Petitioner Josue Israel Sanchez (“Petitioner”), a state inmate 19 proceeding pro se, filed a Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. 20 § 2254 in the Ninth Circuit Court of Appeals.1 (ECF No. 1.) Petitioner subsequently filed 21 a motion to appoint counsel in the Ninth Circuit. (ECF No. 2.) On September 8, 2025, the 22 Ninth Circuit issued an Order directing the transfer of the instant habeas Petition and 23 motion to this Court “for whatever consideration that court deems appropriate,” citing Fed. 24 25 1 While the instant Petition was transferred to this district after being initially sent to and 26 filed in the Ninth Circuit (see ECF Nos. 1 at 9, 1-2 at 1-2), the Court notes Petitioner has 27 captioned the Petition form to the San Diego Superior Court, North County. (See ECF No. 1 at 1.) That said, the Court will construe the Petition as one intended for filing in this Court 28 1 R. App. P. 22(a) and 28 U.S.C. §§ 1631, 2241(b), and stated that: “This transfer order is 2 issued without regard to whether petitioner’s claims have any merit or satisfy the 3 procedural requirements of 28 U.S.C. §§ 2244(d) and 2254.” (ECF No. 1-2 at 1-2.) The 4 Ninth Circuit also directed that: “The petition is deemed filed on July 25, 2025, the date it 5 was delivered to prison authorities for forwarding to this court.” (Id. at 1-2, citing Fed. R. 6 App. P. 4(c)(1) and Houston v. Lack, 487 U.S. 266, 270 (1988).) On September 2, 2025, 7 the instant case was opened as directed. See generally docket. For the reasons discussed 8 below, the Court dismisses the case without prejudice and denies the motion to appoint 9 counsel without prejudice. 10 FAILURE TO SATISFY FILING FEE REQUIREMENT 11 Petitioner has failed to pay the $5.00 filing fee and has failed to move to proceed in 12 forma pauperis. The Court cannot proceed until Petitioner has either paid the $5.00 filing 13 fee or has qualified to proceed in forma pauperis. See R. 3(a), Rules Governing Section 14 2254 Cases (2019). As such, the instant case is subject to dismissal for failure to satisfy the 15 filing fee requirement. 16 FAILURE TO NAME A PROPER RESPONDENT 17 In addition, Petitioner has failed to name a proper respondent. On federal habeas, a 18 state prisoner must name the state officer having custody of him as the respondent. Ortiz- 19 Sandoval v. Gomez, 81 F.3d 891, 894 (9th Cir. 1996), citing R. 2(a), Rules Governing 20 Section 2254 Cases (2019). Federal courts lack personal jurisdiction when a habeas petition 21 fails to name a proper respondent. See id. 22 The warden is the typical respondent. However, “the rules following section 2254 23 do not specify the warden.” Id. “[T]he ‘state officer having custody’ may be ‘either the 24 warden of the institution in which the petitioner is incarcerated . . . or the chief officer in 25 charge of state penal institutions.’” Id., quoting R. 2(a), Rules Governing Section 2254 26 Cases (2019), 28 U.S.C. foll. § 2254 advisory committee’s note. 27 Here, Petitioner has incorrectly named “San Diego District Attorney” as 28 Respondent. (See ECF No. 1 at 1.) In order for this Court to entertain the Petition filed in 1 this action, Petitioner must name the individual having custody of him as Respondent. 2 Brittingham v. United States, 982 F.2d 378, 379 (9th Cir. 1992) (per curiam); see also 3 Ashley v. Washington, 394 F.2d 125, 126 (9th Cir. 1968) (“The actual person who is [the] 4 custodian [of the petitioner] must be the respondent.”) Thus, the Petition is subject to 5 dismissal for failure to name a proper Respondent. 6 FAILURE TO EXHAUST STATE COURT REMEDIES 7 Upon review, it also does not appear state court remedies have been exhausted as to 8 any of the enumerated claims in the Petition. Habeas petitioners who wish to challenge 9 either their state court conviction or the length of their confinement in state prison must 10 first exhaust state judicial remedies. See 28 U.S.C. § 2254(b), (c); Granberry v. Greer, 481 11 U.S. 129, 133-34 (1987); see also Picard v. Connor, 404 U.S. 270, 275 (1971) (“[A] state 12 prisoner must normally exhaust available state judicial remedies before a federal court will 13 entertain his petition for habeas corpus.”) “A petitioner has satisfied the exhaustion 14 requirement if: (1) he has ‘fairly presented’ his federal claim to the highest state court with 15 jurisdiction to consider it,” which in this case is the California Supreme Court, “or (2) he 16 demonstrates that no state remedy remains available.” Johnson v. Zenon, 88 F.3d 828, 829 17 (9th Cir. 1996) (citations omitted); see also O’Sullivan v. Boerckel, 526 U.S. 838, 845 18 (1999) (“[S]tate prisoners must give the state courts one full opportunity to resolve any 19 constitutional issues by invoking one complete round of the State’s established appellate 20 review process.”) 21 Additionally, the claims presented in the federal courts must be the same as those 22 exhausted in state court and must also allege, in state court, how one or more of his federal 23 rights have been violated. See Picard, 404 U.S. at 276 (“Only if the state courts have had 24 the first opportunity to hear the claim sought to be vindicated in a federal habeas proceeding 25 does it make sense to speak of the exhaustion of state remedies. Accordingly, we have 26 required a state prisoner to present the state courts with the same claim he urges upon the 27 federal courts.”); see also Duncan v. Henry, 513 U.S. 364, 365-66 (1995) (“If state courts 28 are to be given the opportunity to correct alleged violations of prisoners’ federal rights, 1 they must surely be alerted to the fact that the prisoners are asserting claims under the 2 United States Constitution. If a habeas petitioner wishes to claim that an evidentiary ruling 3 at a state court trial denied him the due process of law guaranteed by the Fourteenth 4 Amendment, he must say so, not only in federal court, but in state court.”) 5 Petitioner raises two enumerated claims for relief, a claim alleging prosecutorial 6 misconduct and a claim alleging ineffective assistance of counsel. (See ECF No. 1 at 3-4.) 7 In order to proceed on federal habeas, Petitioner must first exhaust the claims he wishes to 8 present here in the California Supreme Court. Petitioner does not allege that he raised either 9 of the two claims he wishes to present here in the California Supreme Court, and instead 10 indicates he sought review in the state supreme court but that the issues raised in that court 11 are “not known.” (See id.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 JOSUE ISRAEL SANCHEZ, Case No.: 25cv2335 WQH (DEB)
12 Petitioner, ORDER DISMISSING CASE 13 v. WITHOUT PREJUDICE AND DENYING MOTION TO APPOINT 14 SAN DIEGO DISTRICT ATTORNEY, COUNSEL WITHOUT PREJUDICE 15 Respondent. [ECF No. 2] 16 17 HAYES, Judge: 18 On July 25, 2025, Petitioner Josue Israel Sanchez (“Petitioner”), a state inmate 19 proceeding pro se, filed a Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. 20 § 2254 in the Ninth Circuit Court of Appeals.1 (ECF No. 1.) Petitioner subsequently filed 21 a motion to appoint counsel in the Ninth Circuit. (ECF No. 2.) On September 8, 2025, the 22 Ninth Circuit issued an Order directing the transfer of the instant habeas Petition and 23 motion to this Court “for whatever consideration that court deems appropriate,” citing Fed. 24 25 1 While the instant Petition was transferred to this district after being initially sent to and 26 filed in the Ninth Circuit (see ECF Nos. 1 at 9, 1-2 at 1-2), the Court notes Petitioner has 27 captioned the Petition form to the San Diego Superior Court, North County. (See ECF No. 1 at 1.) That said, the Court will construe the Petition as one intended for filing in this Court 28 1 R. App. P. 22(a) and 28 U.S.C. §§ 1631, 2241(b), and stated that: “This transfer order is 2 issued without regard to whether petitioner’s claims have any merit or satisfy the 3 procedural requirements of 28 U.S.C. §§ 2244(d) and 2254.” (ECF No. 1-2 at 1-2.) The 4 Ninth Circuit also directed that: “The petition is deemed filed on July 25, 2025, the date it 5 was delivered to prison authorities for forwarding to this court.” (Id. at 1-2, citing Fed. R. 6 App. P. 4(c)(1) and Houston v. Lack, 487 U.S. 266, 270 (1988).) On September 2, 2025, 7 the instant case was opened as directed. See generally docket. For the reasons discussed 8 below, the Court dismisses the case without prejudice and denies the motion to appoint 9 counsel without prejudice. 10 FAILURE TO SATISFY FILING FEE REQUIREMENT 11 Petitioner has failed to pay the $5.00 filing fee and has failed to move to proceed in 12 forma pauperis. The Court cannot proceed until Petitioner has either paid the $5.00 filing 13 fee or has qualified to proceed in forma pauperis. See R. 3(a), Rules Governing Section 14 2254 Cases (2019). As such, the instant case is subject to dismissal for failure to satisfy the 15 filing fee requirement. 16 FAILURE TO NAME A PROPER RESPONDENT 17 In addition, Petitioner has failed to name a proper respondent. On federal habeas, a 18 state prisoner must name the state officer having custody of him as the respondent. Ortiz- 19 Sandoval v. Gomez, 81 F.3d 891, 894 (9th Cir. 1996), citing R. 2(a), Rules Governing 20 Section 2254 Cases (2019). Federal courts lack personal jurisdiction when a habeas petition 21 fails to name a proper respondent. See id. 22 The warden is the typical respondent. However, “the rules following section 2254 23 do not specify the warden.” Id. “[T]he ‘state officer having custody’ may be ‘either the 24 warden of the institution in which the petitioner is incarcerated . . . or the chief officer in 25 charge of state penal institutions.’” Id., quoting R. 2(a), Rules Governing Section 2254 26 Cases (2019), 28 U.S.C. foll. § 2254 advisory committee’s note. 27 Here, Petitioner has incorrectly named “San Diego District Attorney” as 28 Respondent. (See ECF No. 1 at 1.) In order for this Court to entertain the Petition filed in 1 this action, Petitioner must name the individual having custody of him as Respondent. 2 Brittingham v. United States, 982 F.2d 378, 379 (9th Cir. 1992) (per curiam); see also 3 Ashley v. Washington, 394 F.2d 125, 126 (9th Cir. 1968) (“The actual person who is [the] 4 custodian [of the petitioner] must be the respondent.”) Thus, the Petition is subject to 5 dismissal for failure to name a proper Respondent. 6 FAILURE TO EXHAUST STATE COURT REMEDIES 7 Upon review, it also does not appear state court remedies have been exhausted as to 8 any of the enumerated claims in the Petition. Habeas petitioners who wish to challenge 9 either their state court conviction or the length of their confinement in state prison must 10 first exhaust state judicial remedies. See 28 U.S.C. § 2254(b), (c); Granberry v. Greer, 481 11 U.S. 129, 133-34 (1987); see also Picard v. Connor, 404 U.S. 270, 275 (1971) (“[A] state 12 prisoner must normally exhaust available state judicial remedies before a federal court will 13 entertain his petition for habeas corpus.”) “A petitioner has satisfied the exhaustion 14 requirement if: (1) he has ‘fairly presented’ his federal claim to the highest state court with 15 jurisdiction to consider it,” which in this case is the California Supreme Court, “or (2) he 16 demonstrates that no state remedy remains available.” Johnson v. Zenon, 88 F.3d 828, 829 17 (9th Cir. 1996) (citations omitted); see also O’Sullivan v. Boerckel, 526 U.S. 838, 845 18 (1999) (“[S]tate prisoners must give the state courts one full opportunity to resolve any 19 constitutional issues by invoking one complete round of the State’s established appellate 20 review process.”) 21 Additionally, the claims presented in the federal courts must be the same as those 22 exhausted in state court and must also allege, in state court, how one or more of his federal 23 rights have been violated. See Picard, 404 U.S. at 276 (“Only if the state courts have had 24 the first opportunity to hear the claim sought to be vindicated in a federal habeas proceeding 25 does it make sense to speak of the exhaustion of state remedies. Accordingly, we have 26 required a state prisoner to present the state courts with the same claim he urges upon the 27 federal courts.”); see also Duncan v. Henry, 513 U.S. 364, 365-66 (1995) (“If state courts 28 are to be given the opportunity to correct alleged violations of prisoners’ federal rights, 1 they must surely be alerted to the fact that the prisoners are asserting claims under the 2 United States Constitution. If a habeas petitioner wishes to claim that an evidentiary ruling 3 at a state court trial denied him the due process of law guaranteed by the Fourteenth 4 Amendment, he must say so, not only in federal court, but in state court.”) 5 Petitioner raises two enumerated claims for relief, a claim alleging prosecutorial 6 misconduct and a claim alleging ineffective assistance of counsel. (See ECF No. 1 at 3-4.) 7 In order to proceed on federal habeas, Petitioner must first exhaust the claims he wishes to 8 present here in the California Supreme Court. Petitioner does not allege that he raised either 9 of the two claims he wishes to present here in the California Supreme Court, and instead 10 indicates he sought review in the state supreme court but that the issues raised in that court 11 are “not known.” (See id. at 5.) If Petitioner has raised his claims in the California Supreme 12 Court, he must so specify.2 13 Rule 4 of the Rules Governing Section 2254 Cases provides for summary dismissal 14 of a habeas petition “[i]f it plainly appears from the face of the petition and any attached 15 exhibits that the petitioner is not entitled to relief in the district court . . .” Rule 4, 28 U.S.C. 16 foll. § 2254. Here, it appears plain from the Petition that Petitioner is not presently entitled 17 to federal habeas relief because Petitioner has not exhausted state court remedies as to any 18 of the enumerated claims in the Petition. See Rasberry v. Garcia, 448 F.3d 1150, 1154 (9th 19 Cir. 2006) (“Once a district court determines that a habeas petition contains only 20 unexhausted claims, it need not inquire further into the petitioner’s intentions. Instead, it 21 may simply dismiss the habeas petition for failure to exhaust.”), citing Jiminez v. Rice, 276 22 F.3d 478, 481 (9th Cir. 2001). 23
24 25 2 The Court notes that Petitioner was previously apprised of the need to exhaust state court remedies, as he filed a federal Petition in 2022 challenging his state court conviction and 26 raising similar claims of error, which was also dismissed without prejudice for failure to 27 exhaust state court remedies. (See ECF No. 31 in Sanchez v. Cisneros, et al., S.D. Cal. Case No. 22cv1159-CAB-MDD) (Apr. 18, 2023, Order Denying Motion for Stay and Abeyance 28 1 The Court additionally cautions Petitioner that under the Antiterrorism and Effective 2 Death Penalty Act of 1996 (AEDPA) a one-year period of limitation shall apply to a 3 petition for a writ of habeas corpus by a person in custody pursuant to the judgment of a 4 State court. The limitation period shall run from the latest of: 5 (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; 6
7 (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, 8 if the applicant was prevented from filing by such State action; 9 (C) the date on which the constitutional right asserted was initially recognized 10 by the Supreme Court, if the right has been newly recognized by the Supreme 11 Court and made retroactively applicable to cases on collateral review; or
12 (D) the date on which the factual predicate of the claim or claims presented 13 could have been discovered through the exercise of due diligence. 14 28 U.S.C. § 2244(d)(1)(A)-(D). 15 The statute of limitations does not run while a properly filed state habeas corpus 16 petition is pending. 28 U.S.C. § 2244(d)(2); see Nino v. Galaza, 183 F.3d 1003, 1006 (9th 17 Cir. 1999), but see Artuz v. Bennett, 531 U.S. 4, 8 (2000) (holding that “an application is 18 ‘properly filed’ when its delivery and acceptance [by the appropriate court officer for 19 placement into the record] are in compliance with the applicable laws and rules governing 20 filings.”). However, absent some other basis for tolling, the statute of limitations does run 21 while a federal habeas petition is pending. Duncan v. Walker, 533 U.S. 167, 181-82 (2001). 22 MOTION TO APPOINT COUNSEL 23 Petitioner has also filed a motion to appoint counsel to represent him in his federal 24 habeas corpus proceeding. (ECF No. 2.) While district courts are provided with statutory 25 authority to appoint counsel in a federal habeas case when a petitioner is financially eligible 26 and “the court determines that the interests of justice so require” pursuant to 18 U.S.C. 27 § 3006A(a)(2)(b), the Ninth Circuit has held that “[i]ndigent state prisoners applying for 28 habeas corpus relief are not entitled to appointed counsel unless the circumstances of a 1 ||particular case indicate that appointed counsel is necessary to prevent due process 2 || violations.” Chaney v. Lewis, 801 F.2d 1191, 1196 (9th Cir. 1986) (citations omitted). 3 While Petitioner asserts that he has “no access to resources” (ECF No. 2 at 1), he 4 not submitted any financial information in support of the instant motion, nor has he 5 || attempted to qualify to proceed in forma pauperis in this action. Nor has Petitioner shown 6 || that the circumstances of this case are such that appointed counsel is necessary or warranted 7 || at this time, particularly given the instant case is currently subject to dismissal. As such, 8 Court DENIES the motion without prejudice to renewing it at a later time. 9 CONCLUSION AND ORDER 10 For the reasons discussed above, the instant habeas case is DISMISSED without 11 prejudice and the Court DENIES Petitioner’s motion to appoint counsel [ECF No. 2] 12 || without prejudice. If Petitioner wishes to reopen and proceed with this habeas case, he must 13 ||submit, no later than November 12, 2025, a copy of this Order along with BOTH: (1) a 14 ||completed First Amended Petition form that cures the pleading deficiencies outlined in the 15 |/instant Order and (2) either the $5.00 fee or adequate proof of Petitioner’s inability to pay 16 fee. The Clerk of Court is directed to send Petitioner a blank In Forma Pauperis 17 || Application and a blank 28 U.S.C. § 2254 Amended Habeas Petition form together with 18 ||a copy of this Order. 19 | IT IS SO ORDERED. 20 21 22 ||Dated: September 17, 2025 Nitta Z. A a 23 Hon, William Q. Hayes 4 United States District Court 25 26 27 28