1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 ERNESTO VARGAS, Case No.: 25cv0896 BEN (MSB)
12 Petitioner, ORDER DENYING MOTION TO 13 v. PROCEED IN FORMA PAUPERIS AND DISMISSING PETITION 14 EDWARD J. BORLA, Warden, WITHOUT PREJUDICE 15 Respondent. [ECF No. 2] 16 17 Petitioner, a state prisoner proceeding pro se, has filed a Petition for a Writ of Habeas 18 Corpus under 28 U.S.C. § 2254. (ECF No. 1.) Petitioner has also filed a motion to proceed 19 in forma pauperis. (ECF No. 2.) Upon review and for the reasons discussed below, the 20 Court DENIES the motion to proceed in forma pauperis without prejudice and 21 DISMISSES the Petition without prejudice. 22 MOTION TO PROCEED IN FORMA PAUPERIS 23 A motion to proceed in forma pauperis made by a state prisoner must include an 24 affidavit with a statement of all assets showing an inability to pay the $5.00 filing fee and 25 “a certificate from the warden or other appropriate officer of the place of confinement 26 showing the amount of money or securities that the petitioner has in any account in the 27 institution.” R. 3(a)(2), Rules Governing § 2254 Cases (2019); see also CivLR 3.2. The 28 motion must also “contain a certified copy of the trust fund account statement (or 1 institutional equivalent) for the prisoner for the 6-month period immediately preceding the 2 filing of the suit or notice of appeal, obtained from the appropriate official of each prison 3 at which the prisoner is or was confined.” CivLR 3.2; see also 28 U.S.C. § 1915(a)(2). 4 Petitioner has failed to provide the Court with the required financial information 5 necessary to evaluate this motion, i.e. the prison certificate or the certified copy of his trust 6 fund account statement. (See generally ECF No. 2.) Because Petitioner has not provided 7 the Court with the required financial information, the Court is unable to determine whether 8 he qualifies to proceed in forma pauperis. Accordingly, the Court DENIES the motion 9 [ECF No. 2] without prejudice to resubmission. 10 Because the Court cannot proceed until Petitioner has either paid the $5.00 filing fee 11 or qualified to proceed in forma pauperis, the instant habeas case is subject to dismissal 12 without prejudice. See R. 3(a), Rules Governing § 2254 Cases (2019). 13 FAILURE TO STATE A COGNIZABLE FEDERAL CLAIM 14 In accordance with Rule 4 of the Rules Governing § 2254 cases, Petitioner has failed 15 to allege that his state court conviction or sentence violates the Constitution of the United 16 States or laws or treaties of the United States. 17 Title 28, United States Code, § 2254(a), sets forth the following scope of review for 18 federal habeas corpus claims: 19 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 20 custody pursuant to the judgment of a State court only on the ground that he 21 is in custody in violation of the Constitution or laws or treaties of the United States. 22
23 28 U.S.C. § 2254(a) (emphasis added). See Hernandez v. Ylst, 930 F.2d 714, 719 (9th Cir. 24 1991); Mannhalt v. Reed, 847 F.2d 576, 579 (9th Cir. 1988); Kealohapauole v. Shimoda, 25 800 F.2d 1463, 1464-65 (9th Cir. 1986). Thus, to present a cognizable federal habeas 26 corpus claim under § 2254, a state prisoner must allege both that he is in custody pursuant 27 to a “judgment of a State court,” and that he is in custody in “violation of the Constitution 28 or laws or treaties of the United States.” See 28 U.S.C. § 2254(a). 1 In the sole claim in the Petition, Petitioner alleges that his sentence is “unlawful” 2 and “legally unauthorized,” contending that the trial court erred “by imposing the full 20- 3 year term for the enhancement under penal code section 12022.53 and by imposing four 4 years for the attempted robbery conviction” instead of a one-third sentence for each of 5 those terms. (See ECF No. 1-2 at 5.) He also asserts that the state court’s rejection of his 6 appeal “constitutes an unreasonable determination of the facts in light of the evidence 7 presented in the state court record” and that the state court misapplied state law in deciding 8 his appeal. (Id. at 7-11.) However, Petitioner does not allege any federal constitutional 9 violation arising from the asserted sentencing error and rejection of his appeal. (See ECF 10 Nos. 1, 1-2 generally.) Thus, in no way does Petitioner claim he is “in custody in violation 11 of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). 12 Rule 4 of the Rules Governing § 2254 Cases provides for summary dismissal of a 13 habeas petition “[i]f it plainly appears from the face of the petition and any attached 14 exhibits that the petitioner is not entitled to relief in the district court . . .” R. 4, Rules 15 Governing Section 2254 Cases (2019). Here, it is plain from the Petition that Petitioner is 16 not presently entitled to federal habeas relief because he has not alleged that the state court 17 violated his federal rights. Because there is no ground upon which to entertain the Petition, 18 the Court must dismiss the case. 19 Further, the Court notes that Petitioner cannot simply amend his Petition to state a 20 federal habeas claim and then refile the amended petition in this case unless he also alleges 21 that he has exhausted state judicial remedies as to that federal claim before bringing it via 22 federal habeas.1 23 /// 24
25 1 It is not entirely clear if Petitioner presented the claim he wishes to present in this Court 26 in the California Supreme Court. On the portion of the habeas petition form asking if he 27 raised Ground One in the California Supreme Court, Petitioner checked the box to indicate “no,“ but in that same section of the form, he also provided the case number of a habeas 28 1 Habeas petitioners who wish to challenge either their state court conviction or the 2 length of their confinement in state prison, must first exhaust state judicial remedies. 28 3 U.S.C. § 2254(b), (c); Granberry v. Greer, 481 U.S. 129, 133-34 (1987). To exhaust state 4 judicial remedies, a California state prisoner must present the California Supreme Court 5 with a fair opportunity to rule on the merits of every issue raised in his or her federal habeas 6 petition. 28 U.S.C. § 2254(b), (c); Granberry, 481 U.S. at 133-34. “A petitioner has 7 satisfied the exhaustion requirement if: (1) he has ‘fairly presented’ his federal claim to the 8 highest state court with jurisdiction to consider it, or (2) he demonstrates that no state 9 remedy remains available.” Johnson v. Zenon, 88 F.3d 828, 829 (9th Cir. 1996) (citations 10 omitted).
Free access — add to your briefcase to read the full text and ask questions with AI
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 ERNESTO VARGAS, Case No.: 25cv0896 BEN (MSB)
12 Petitioner, ORDER DENYING MOTION TO 13 v. PROCEED IN FORMA PAUPERIS AND DISMISSING PETITION 14 EDWARD J. BORLA, Warden, WITHOUT PREJUDICE 15 Respondent. [ECF No. 2] 16 17 Petitioner, a state prisoner proceeding pro se, has filed a Petition for a Writ of Habeas 18 Corpus under 28 U.S.C. § 2254. (ECF No. 1.) Petitioner has also filed a motion to proceed 19 in forma pauperis. (ECF No. 2.) Upon review and for the reasons discussed below, the 20 Court DENIES the motion to proceed in forma pauperis without prejudice and 21 DISMISSES the Petition without prejudice. 22 MOTION TO PROCEED IN FORMA PAUPERIS 23 A motion to proceed in forma pauperis made by a state prisoner must include an 24 affidavit with a statement of all assets showing an inability to pay the $5.00 filing fee and 25 “a certificate from the warden or other appropriate officer of the place of confinement 26 showing the amount of money or securities that the petitioner has in any account in the 27 institution.” R. 3(a)(2), Rules Governing § 2254 Cases (2019); see also CivLR 3.2. The 28 motion must also “contain a certified copy of the trust fund account statement (or 1 institutional equivalent) for the prisoner for the 6-month period immediately preceding the 2 filing of the suit or notice of appeal, obtained from the appropriate official of each prison 3 at which the prisoner is or was confined.” CivLR 3.2; see also 28 U.S.C. § 1915(a)(2). 4 Petitioner has failed to provide the Court with the required financial information 5 necessary to evaluate this motion, i.e. the prison certificate or the certified copy of his trust 6 fund account statement. (See generally ECF No. 2.) Because Petitioner has not provided 7 the Court with the required financial information, the Court is unable to determine whether 8 he qualifies to proceed in forma pauperis. Accordingly, the Court DENIES the motion 9 [ECF No. 2] without prejudice to resubmission. 10 Because the Court cannot proceed until Petitioner has either paid the $5.00 filing fee 11 or qualified to proceed in forma pauperis, the instant habeas case is subject to dismissal 12 without prejudice. See R. 3(a), Rules Governing § 2254 Cases (2019). 13 FAILURE TO STATE A COGNIZABLE FEDERAL CLAIM 14 In accordance with Rule 4 of the Rules Governing § 2254 cases, Petitioner has failed 15 to allege that his state court conviction or sentence violates the Constitution of the United 16 States or laws or treaties of the United States. 17 Title 28, United States Code, § 2254(a), sets forth the following scope of review for 18 federal habeas corpus claims: 19 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 20 custody pursuant to the judgment of a State court only on the ground that he 21 is in custody in violation of the Constitution or laws or treaties of the United States. 22
23 28 U.S.C. § 2254(a) (emphasis added). See Hernandez v. Ylst, 930 F.2d 714, 719 (9th Cir. 24 1991); Mannhalt v. Reed, 847 F.2d 576, 579 (9th Cir. 1988); Kealohapauole v. Shimoda, 25 800 F.2d 1463, 1464-65 (9th Cir. 1986). Thus, to present a cognizable federal habeas 26 corpus claim under § 2254, a state prisoner must allege both that he is in custody pursuant 27 to a “judgment of a State court,” and that he is in custody in “violation of the Constitution 28 or laws or treaties of the United States.” See 28 U.S.C. § 2254(a). 1 In the sole claim in the Petition, Petitioner alleges that his sentence is “unlawful” 2 and “legally unauthorized,” contending that the trial court erred “by imposing the full 20- 3 year term for the enhancement under penal code section 12022.53 and by imposing four 4 years for the attempted robbery conviction” instead of a one-third sentence for each of 5 those terms. (See ECF No. 1-2 at 5.) He also asserts that the state court’s rejection of his 6 appeal “constitutes an unreasonable determination of the facts in light of the evidence 7 presented in the state court record” and that the state court misapplied state law in deciding 8 his appeal. (Id. at 7-11.) However, Petitioner does not allege any federal constitutional 9 violation arising from the asserted sentencing error and rejection of his appeal. (See ECF 10 Nos. 1, 1-2 generally.) Thus, in no way does Petitioner claim he is “in custody in violation 11 of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). 12 Rule 4 of the Rules Governing § 2254 Cases provides for summary dismissal of a 13 habeas petition “[i]f it plainly appears from the face of the petition and any attached 14 exhibits that the petitioner is not entitled to relief in the district court . . .” R. 4, Rules 15 Governing Section 2254 Cases (2019). Here, it is plain from the Petition that Petitioner is 16 not presently entitled to federal habeas relief because he has not alleged that the state court 17 violated his federal rights. Because there is no ground upon which to entertain the Petition, 18 the Court must dismiss the case. 19 Further, the Court notes that Petitioner cannot simply amend his Petition to state a 20 federal habeas claim and then refile the amended petition in this case unless he also alleges 21 that he has exhausted state judicial remedies as to that federal claim before bringing it via 22 federal habeas.1 23 /// 24
25 1 It is not entirely clear if Petitioner presented the claim he wishes to present in this Court 26 in the California Supreme Court. On the portion of the habeas petition form asking if he 27 raised Ground One in the California Supreme Court, Petitioner checked the box to indicate “no,“ but in that same section of the form, he also provided the case number of a habeas 28 1 Habeas petitioners who wish to challenge either their state court conviction or the 2 length of their confinement in state prison, must first exhaust state judicial remedies. 28 3 U.S.C. § 2254(b), (c); Granberry v. Greer, 481 U.S. 129, 133-34 (1987). To exhaust state 4 judicial remedies, a California state prisoner must present the California Supreme Court 5 with a fair opportunity to rule on the merits of every issue raised in his or her federal habeas 6 petition. 28 U.S.C. § 2254(b), (c); Granberry, 481 U.S. at 133-34. “A petitioner has 7 satisfied the exhaustion requirement if: (1) he has ‘fairly presented’ his federal claim to the 8 highest state court with jurisdiction to consider it, or (2) he demonstrates that no state 9 remedy remains available.” Johnson v. Zenon, 88 F.3d 828, 829 (9th Cir. 1996) (citations 10 omitted). Moreover, to properly exhaust state court remedies a petitioner must allege, in 11 state court, how one or more of his or her federal rights have been violated. See Duncan 12 v. Henry, 513 U.S. 364, 365-66 (1995) (“If a habeas petitioner wishes to claim that an 13 evidentiary ruling at a state court trial denied him the due process of law guaranteed by the 14 Fourteenth Amendment, he must say so, not only in federal court, but in state court.”) 15 The Court additionally cautions Petitioner that under the Antiterrorism and Effective 16 Death Penalty Act of 1996 (AEDPA) a one-year period of limitation shall apply to a 17 petition for a writ of habeas corpus by a person in custody pursuant to the judgment of a 18 State court. The limitation period shall run from the latest of: 19 (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; 20
21 (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, 22 if the applicant was prevented from filing by such State action; 23 (C) the date on which the constitutional right asserted was initially recognized 24 by the Supreme Court, if the right has been newly recognized by the Supreme 25 Court and made retroactively applicable to cases on collateral review; or
26 (D) the date on which the factual predicate of the claim or claims presented 27 could have been discovered through the exercise of due diligence. 28 28 U.S.C. § 2244(d)(1)(A)-(D). 1 The statute of limitations does not run while a properly filed state habeas corpus 2 || petition is pending. 28 U.S.C. § 2244(d)(2); see Nino v. Galaza, 183 F.3d 1003, 1006 (9th 3 || Cir. 1999), but see Artuz v. Bennett, 531 U.S. 4, 8 (2000) (holding that “an application is 4 ||‘properly filed’ when its delivery and acceptance [by the appropriate court officer for 5 || placement into the record] are in compliance with the applicable laws and rules governing 6 || filings.”). However, absent some other basis for tolling, the statute of limitations does run 7 || while a federal habeas petition is pending. Duncan v. Walker, 533 U.S. 167, 181-82 (2001). 8 CONCLUSION AND ORDER 9 For the reasons discussed above, the Court DENIES the motion to proceed in forma 10 || pauperis [ECF No. 2] without prejudice and DISMISSES the Petition without prejudice. 11 have this case reopened, Petitioner must submit, no later than June 16, 2025, BOTH: 12 ||(1) a completed First Amended Petition form that cures the pleading deficiencies outlined 13 |/in the instant Order and (2) either the $5.00 fee or adequate proof of Petitioner’s inability 14 pay the fee. The Clerk of Court is directed to send Petitioner a blank 28 U.S.C. § 2254 15 || Amended Habeas Petition form and a blank In Forma Pauperis Application together 16 || with a copy of this Order. 17 || IT IS SO ORDERED. 18 |! Dated: June 16, 2025 19 (uy 20 Honorable Roger T. Benitez 7] United States District Judge 22 23 24 25 26 27 28