1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 TERRY LEWIS, Case No.: 20cv0195 GPC (AGS)
12 Petitioner, ORDER DISMISSING CASE 13 v. WITHOUT PREJUDICE AND WITH LEAVE TO AMEND 14 HON. JANIS SAMMARTINO, 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 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. This Court cannot proceed until Petitioner has either paid the $5.00 22 filing fee or qualified to proceed in forma pauperis. See Rule 3(a), 28 U.S.C. foll. § 2254. 23 FAILURE TO NAME PROPER RESPONDENT 24 Review of the Petition reveals that Petitioner has failed to name a proper 25 respondent. On federal habeas, a state prisoner must name the state officer having 26 custody of him as the respondent. Ortiz-Sandoval v. Gomez, 81 F.3d 891, 894 (9th Cir. 27 1996) (citing Rule 2(a), 28 U.S.C. foll. § 2254). Federal courts lack personal jurisdiction 28 when a habeas petition fails to name a proper respondent. See id. 1 The warden is the typical respondent. However, “the rules following section 2254 2 do not specify the warden.” Id. “[T]he ‘state officer having custody’ may be ‘either the 3 warden of the institution in which the petitioner is incarcerated . . . or the chief officer in 4 charge of state penal institutions.’” Id. (quoting Rule 2(a), 28 U.S.C. foll. § 2254 5 advisory committee’s note). If “a petitioner is in custody due to the state action he is 6 challenging, ‘[t]he named respondent shall be the state officer who has official custody of 7 the petitioner (for example, the warden of the prison).’” Id. (quoting Rule 2, 28 U.S.C. 8 foll. § 2254 advisory committee’s note). 9 A long standing rule in the Ninth Circuit holds “that a petitioner may not seek [a 10 writ of] habeas corpus against the State under . . . [whose] authority . . . the petitioner is 11 in custody. The actual person who is [the] custodian [of the petitioner] must be the 12 respondent.” Ashley v. Washington, 394 F.2d 125, 126 (9th Cir. 1968). This requirement 13 exists because a writ of habeas corpus acts upon the custodian of the state prisoner, the 14 person who will produce “the body” if directed to do so by the Court. “Both the warden 15 of a California prison and the Director of Corrections for California have the power to 16 produce the prisoner.” Ortiz-Sandoval, 81 F.3d at 895. 17 Here, Petitioner has incorrectly named “Hon. Janis Sammartino and Public 18 Defenders,” as Respondents. In order for this Court to entertain the Petition filed in this 19 action, Petitioner must name the warden in charge of the state correctional facility in 20 which Petitioner is presently confined or the Director of the California Department of 21 Corrections. Brittingham v. United States, 982 F.2d 378, 379 (9th Cir. 1992) (per 22 curiam). 23 FAILURE TO STATE A COGNIZABLE FEDERAL CLAIM 24 Additionally, in accordance with Rule 4 of the rules governing § 2254 cases, 25 Petitioner has failed to allege that his state court conviction or sentence violates the 26 Constitution of the United States. 27 Title 28, United States Code, § 2254(a), sets forth the following scope of review 28 for federal habeas corpus claims: 1 The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an application for a writ of habeas corpus in behalf of a person in 2 custody pursuant to the judgment of a State court only on the ground that he 3 is in custody in violation of the Constitution or laws or treaties of the United States. 4
5 28 U.S.C. § 2254(a) (emphasis added). See Hernandez v. Ylst, 930 F.2d 714, 719 (9th 6 Cir. 1991). Thus, to present a cognizable federal habeas corpus claim under § 2254, a 7 state prisoner must allege both that he is in custody pursuant to a “judgment of a State 8 court,” and that he is in custody in “violation of the Constitution or laws or treaties of the 9 United States.” See 28 U.S.C. § 2254(a). 10 Here, Petitioner states the following: “Jury found me guilty. Stole a 19 inch color 11 TV from a thrift store the victim purchased from a thrift store once more for 90 dollars.” 12 “I was an addict, maam. I’ve been sober 24 years, graduated in computers.” “They took 13 me back Judge under SB224 Act 2015 this is 2020 5 years later.” “Marine Corp. were 14 heros. Let me, help me to strike these enhancements 12 years. Call Lancaseter with a 15 new EPRD release date.” “Asking Court to strike 2 five year priors.” (Pet., ECF No. 1 at 16 2-5.) In no way does Petitioner claim he is “in custody in violation of the Constitution or 17 laws or treaties of the United States.” 28 U.S.C. § 2254. 18 Further, the Court notes that Petitioner cannot simply amend his Petition to state a 19 federal habeas claim and then refile the amended petition in this case. He must exhaust 20 state judicial remedies before bringing his claims via federal habeas. State prisoners who 21 wish to challenge their state court conviction must first exhaust state judicial remedies. 22 28 U.S.C. § 2254(b), (c); Granberry v. Greer, 481 U.S. 129, 133-34 (1987). To exhaust 23 state judicial remedies, a California state prisoner must present the California Supreme 24 Court with a fair opportunity to rule on the merits of every issue raised in his or her 25 federal habeas petition. See 28 U.S.C. § 2254(b), (c); Granberry, 481 U.S. at 133-34. 26 Moreover, to properly exhaust state court judicial remedies a petitioner must allege, in 27 state court, how one or more of his or her federal rights have been violated. The Supreme 28 Court in Duncan v. Henry, 513 U.S. 364 (1995) reasoned: “If state courts are to be given 1 the opportunity to correct alleged violations of prisoners’ federal rights, they must surely 2 be alerted to the fact that the prisoners are asserting claims under the United States 3 Constitution.” Id. at 365-66 (emphasis added). For example, “[i]f a habeas petitioner 4 wishes to claim that an evidentiary ruling at a state court trial denied him the due process 5 of law guaranteed by the Fourteenth Amendment, he must say so, not only in federal 6 court, but in state court.” Id. (emphasis added). 7 Additionally, the Court cautions Petitioner that under the Antiterrorism and 8 Effective Death Penalty Act of 1996 (Act), signed into law on April 24, 1996, a one-year 9 period of limitation applies to a petition for a writ of habeas corpus by a person in 10 custody pursuant to the judgment of a State court.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 TERRY LEWIS, Case No.: 20cv0195 GPC (AGS)
12 Petitioner, ORDER DISMISSING CASE 13 v. WITHOUT PREJUDICE AND WITH LEAVE TO AMEND 14 HON. JANIS SAMMARTINO, 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 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. This Court cannot proceed until Petitioner has either paid the $5.00 22 filing fee or qualified to proceed in forma pauperis. See Rule 3(a), 28 U.S.C. foll. § 2254. 23 FAILURE TO NAME PROPER RESPONDENT 24 Review of the Petition reveals that Petitioner has failed to name a proper 25 respondent. On federal habeas, a state prisoner must name the state officer having 26 custody of him as the respondent. Ortiz-Sandoval v. Gomez, 81 F.3d 891, 894 (9th Cir. 27 1996) (citing Rule 2(a), 28 U.S.C. foll. § 2254). Federal courts lack personal jurisdiction 28 when a habeas petition fails to name a proper respondent. See id. 1 The warden is the typical respondent. However, “the rules following section 2254 2 do not specify the warden.” Id. “[T]he ‘state officer having custody’ may be ‘either the 3 warden of the institution in which the petitioner is incarcerated . . . or the chief officer in 4 charge of state penal institutions.’” Id. (quoting Rule 2(a), 28 U.S.C. foll. § 2254 5 advisory committee’s note). If “a petitioner is in custody due to the state action he is 6 challenging, ‘[t]he named respondent shall be the state officer who has official custody of 7 the petitioner (for example, the warden of the prison).’” Id. (quoting Rule 2, 28 U.S.C. 8 foll. § 2254 advisory committee’s note). 9 A long standing rule in the Ninth Circuit holds “that a petitioner may not seek [a 10 writ of] habeas corpus against the State under . . . [whose] authority . . . the petitioner is 11 in custody. The actual person who is [the] custodian [of the petitioner] must be the 12 respondent.” Ashley v. Washington, 394 F.2d 125, 126 (9th Cir. 1968). This requirement 13 exists because a writ of habeas corpus acts upon the custodian of the state prisoner, the 14 person who will produce “the body” if directed to do so by the Court. “Both the warden 15 of a California prison and the Director of Corrections for California have the power to 16 produce the prisoner.” Ortiz-Sandoval, 81 F.3d at 895. 17 Here, Petitioner has incorrectly named “Hon. Janis Sammartino and Public 18 Defenders,” as Respondents. In order for this Court to entertain the Petition filed in this 19 action, Petitioner must name the warden in charge of the state correctional facility in 20 which Petitioner is presently confined or the Director of the California Department of 21 Corrections. Brittingham v. United States, 982 F.2d 378, 379 (9th Cir. 1992) (per 22 curiam). 23 FAILURE TO STATE A COGNIZABLE FEDERAL CLAIM 24 Additionally, in accordance with Rule 4 of the rules governing § 2254 cases, 25 Petitioner has failed to allege that his state court conviction or sentence violates the 26 Constitution of the United States. 27 Title 28, United States Code, § 2254(a), sets forth the following scope of review 28 for federal habeas corpus claims: 1 The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an application for a writ of habeas corpus in behalf of a person in 2 custody pursuant to the judgment of a State court only on the ground that he 3 is in custody in violation of the Constitution or laws or treaties of the United States. 4
5 28 U.S.C. § 2254(a) (emphasis added). See Hernandez v. Ylst, 930 F.2d 714, 719 (9th 6 Cir. 1991). Thus, to present a cognizable federal habeas corpus claim under § 2254, a 7 state prisoner must allege both that he is in custody pursuant to a “judgment of a State 8 court,” and that he is in custody in “violation of the Constitution or laws or treaties of the 9 United States.” See 28 U.S.C. § 2254(a). 10 Here, Petitioner states the following: “Jury found me guilty. Stole a 19 inch color 11 TV from a thrift store the victim purchased from a thrift store once more for 90 dollars.” 12 “I was an addict, maam. I’ve been sober 24 years, graduated in computers.” “They took 13 me back Judge under SB224 Act 2015 this is 2020 5 years later.” “Marine Corp. were 14 heros. Let me, help me to strike these enhancements 12 years. Call Lancaseter with a 15 new EPRD release date.” “Asking Court to strike 2 five year priors.” (Pet., ECF No. 1 at 16 2-5.) In no way does Petitioner claim he is “in custody in violation of the Constitution or 17 laws or treaties of the United States.” 28 U.S.C. § 2254. 18 Further, the Court notes that Petitioner cannot simply amend his Petition to state a 19 federal habeas claim and then refile the amended petition in this case. He must exhaust 20 state judicial remedies before bringing his claims via federal habeas. State prisoners who 21 wish to challenge their state court conviction must first exhaust state judicial remedies. 22 28 U.S.C. § 2254(b), (c); Granberry v. Greer, 481 U.S. 129, 133-34 (1987). To exhaust 23 state judicial remedies, a California state prisoner must present the California Supreme 24 Court with a fair opportunity to rule on the merits of every issue raised in his or her 25 federal habeas petition. See 28 U.S.C. § 2254(b), (c); Granberry, 481 U.S. at 133-34. 26 Moreover, to properly exhaust state court judicial remedies a petitioner must allege, in 27 state court, how one or more of his or her federal rights have been violated. The Supreme 28 Court in Duncan v. Henry, 513 U.S. 364 (1995) reasoned: “If state courts are to be given 1 the opportunity to correct alleged violations of prisoners’ federal rights, they must surely 2 be alerted to the fact that the prisoners are asserting claims under the United States 3 Constitution.” Id. at 365-66 (emphasis added). For example, “[i]f a habeas petitioner 4 wishes to claim that an evidentiary ruling at a state court trial denied him the due process 5 of law guaranteed by the Fourteenth Amendment, he must say so, not only in federal 6 court, but in state court.” Id. (emphasis added). 7 Additionally, the Court cautions Petitioner that under the Antiterrorism and 8 Effective Death Penalty Act of 1996 (Act), signed into law on April 24, 1996, a one-year 9 period of limitation applies to a petition for a writ of habeas corpus by a person in 10 custody pursuant to the judgment of a State court. The limitation period runs from the 11 latest of: 12 (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; 13
14 (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 15 removed, if the applicant was prevented from filing by such State action; 16 (C) the date on which the constitutional right asserted was initially 17 recognized by the Supreme Court, if the right has been newly recognized by 18 the Supreme Court and made retroactively applicable to cases on collateral review; or 19
20 (D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence. 21
22 28 U.S.C. § 2244(d)(1)(A)-(D) (West Supp. 2002). 23 The Court also notes that the statute of limitations does not run while a properly 24 filed state habeas corpus petition is pending. 28 U.S.C. § 2244(d)(2); see Nino v. Galaza, 25 183 F.3d 1003, 1006 (9th Cir. 1999). But see Artuz v. Bennett, 531 U.S. 4, 8 (2000) 26 (holding that “an application is ‘properly filed’ when its delivery and acceptance [by the 27 appropriate court officer for placement into the record] are in compliance with the 28 applicable laws and rules governing filings.”). However, absent some other basis for 1 || tolling, the statute of limitations does run while a federal habeas petition is pending. 2 Duncan vy. Walker, 533 U.S. 167, 181-82 (2001). 3 CONCLUSION 4 Based on the foregoing, the Court DISMISSES this action without prejudice and 5 || with leave to amend. To have this case reopened, Petitioner must, no later than April 6, 6 ||2020: (1) pay the $5.00 filing fee or submit adequate proof of his inability to pay the fee; 7 || AND (2) file a First Amended Petition that cures the pleading deficiencies set forth 8 ||above. The Clerk of Court will mail Petitioner a blank motion to proceed in forma 9 pauperis form and a First Amended Petition form together with a copy of this Order. 10 IT IS SO ORDERED. 11 ||Dated: February 19, 2020 12 Hon. athe Cae 13 United States District Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28