Warshaw v. Covello

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 CHRISTOPHER D. WARSAW, Case No.: 19cv1578 CAB (MDD)

12 Petitioner, ORDER: (1) DENYING REQUEST 13 v. TO PROCEED IN FORMA PAUPERIS AS MOOT AND (2) 14 MARCUS POLLARD, Warden, DISMISSING FIRST AMENDED 15 Respondent. PETITION WITHOUT PREJUDICE 16 17 On August 7, 2019, Petitioner, proceeding pro se, submitted a Petition for Writ of 18 Habeas Corpus pursuant to 28 U.S.C. § 2254, along with a request to proceed in forma 19 pauperis. (See ECF Nos. 1 & 2.) On September 4, 2019, Petitioner paid the requisite 20 filing fee. (See ECF No. 3.) In its September 6, 2019 Order, the Court denied 21 Petitioner’s request to proceed in forma pauperis as moot and dismissed the case without 22 prejudice because Petitioner failed to state a cognizable claim. Petitioner was instructed 23 that to have this case reopened he had to file a First Amended Petition no later than 24 November 12, 2019. On October 28, 2019, Petitioner filed a First Amended Petition 25 (ECF No. 13) pursuant to this Court’s Order, along with another request to proceed in 26 forma pauperis. (ECF No. 14.) 27 / / / 28 / / / 1 REQUEST TO PROCEED IN FORMA PAUPERIS 2 As noted above, Petitioner submitted the $5.00 filing fee on September 4, 2019. 3 (ECF No. 3.) Because Petitioner has paid the filing fee, the Court DENIES Petitioner’s 4 application to proceed in forma pauperis as moot. 5 FAILURE TO ALLEGE EXHAUSTION OF STATE JUDICIAL REMEDIES 6 The First Amended Petition must be dismissed because Petitioner has failed to 7 allege exhaustion of state judicial remedies. Habeas petitioners who wish to challenge 8 either their state court conviction or the length of their confinement in state prison, must 9 first exhaust state judicial remedies. 28 U.S.C. § 2254(b), (c); Granberry v. Greer, 481 10 U.S. 129, 133-34 (1987). To exhaust state judicial remedies, a California state prisoner 11 must present the California Supreme Court with a fair opportunity to rule on the merits of 12 every issue raised in his or her federal habeas petition. 28 U.S.C. § 2254(b), (c); 13 Granberry, 481 U.S. at 133-34. 14 Moreover, to properly exhaust state court remedies a petitioner must allege, in state 15 court, how one or more of his or her federal rights have been violated. The Supreme 16 Court in Duncan v. Henry, 513 U.S. 364 (1995) reasoned: “If state courts are to be given 17 the opportunity to correct alleged violations of prisoners’ federal rights, they must surely 18 be alerted to the fact that the prisoners are asserting claims under the United States 19 Constitution.” Id. at 365-66 (emphasis added). For example, “[i]f a habeas petitioner 20 wishes to claim that an evidentiary ruling at a state court trial denied him [or her] the due 21 process of law guaranteed by the Fourteenth Amendment, he [or she] must say so, not 22 only in federal court, but in state court.” Id. at 366 (emphasis added). 23 Nowhere on the Petition does Petitioner allege that he raised his claims in the 24 California Supreme Court. If Petitioner has raised his claims in the California Supreme 25 Court he must so specify. “The burden of proving that a claim has been exhausted lies 26 with the petitioner.” Matthews v. Evatt, 105 F.3d 907, 911 (4th Cir. 1997); see Breard v. 27 / / / 28 / / / 1 Pruett, 134 F.3d 615, 619 (4th Cir. 1998); Lambert v. Blackwell, 134 F.3d 506, 513 (3d 2 Cir. 1997); Oyler v. Allenbrand, 23 F.3d 292, 300 (10th Cir. 1994); Rust v. Zent, 17 F.3d 3 155, 160 (6th Cir. 1994). 4 Further, the Court cautions Petitioner that under the Antiterrorism and Effective 5 Death Penalty Act of 1996 (AEDPA) a one-year period of limitation shall apply to a 6 petition for a writ of habeas corpus by a person in custody pursuant to the judgment of a 7 State court. The limitation period shall run from the latest of: 8 (A) the date on which the judgment became final by the conclusion of direct 9 review or the expiration of the time for seeking such review; 10 (B) the date on which the impediment to filing an application created by 11 State action in violation of the Constitution or laws of the United States is 12 removed, if the applicant was prevented from filing by such State action;

13 (C) the date on which the constitutional right asserted was initially 14 recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral 15 review; or 16 (D) the date on which the factual predicate of the claim or claims presented 17 could have been discovered through the exercise of due diligence. 18 19 28 U.S.C. § 2244(d)(1)(A)-(D) (West 2006). 20 The statute of limitations does not run while a properly filed state habeas corpus 21 petition is pending. 28 U.S.C. § 2244(d)(2); see Nino v. Galaza, 183 F.3d 1003, 1006 22 (9th Cir. 1999). But see Artuz v. Bennett, 531 U.S. 4, 8 (2000) (holding that “an 23 application is ‘properly filed’ when its delivery and acceptance [by the appropriate court 24 officer for placement into the record] are in compliance with the applicable laws and 25 rules governing filings.”). However, absent some other basis for tolling, the statute of 26 limitations does run while a federal habeas petition is pending. Duncan v. Walker, 533 27 U.S. 167, 181-82 (2001). 28 / / / 1 Rule 4 of the Rules Governing Section 2254 Cases provides for summary dismissal 2 || of a habeas petition “[i]f it plainly appears from the face of the petition and any exhibits 3 || annexed to it that the petitioner is not entitled to relief in the district court...” Rule 4, 28 4 ||U.S.C. foll. § 2254. Here, it appears plain from the Petition that Petitioner is not 5 || presently entitled to federal habeas relief because he has not alleged exhaustion of state 6 || court remedies. 7 CONCLUSION 8 Accordingly, the Court DENIES the request to proceed in forma pauperis as moot 9 ||and DISMISSES the case without prejudice and with leave to amend. In order to have 10 || this case reopened, Petitioner must file a Second Amended Petition which cures the 11 || pleading deficiency outlined in this Order, no later than December 30, 2019. For 12 || Petitioner’s convenience, the Clerk of Court shall include with this Order, a blank 13 || amended petition form. 14 IT IS SO ORDERED. 15 ||Dated: October 29, 2019 € Z 16 Hon. Cathy Ann Bencivengo 17 United States District Judge 18 19 20 21 22 23 24 25 26 27 28