Valles v. Allison

[7] 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA [10] 11 ANDREW VALLES, Case No.: 21-cv-0819-GPC-WVG 12 Petitioner, ORDER (1) GRANTING 13 v. APPLICATION TO PROCEED IN FORMA PAUPERIS; AND 14 KATHLEEN ALLISON, Secretary, (2) DISMISSING PETITION 15 Respondent. WITHOUT PREJUDICE AND WITH LEAVE TO AMEND [17] 18 Petitioner, a state prisoner proceeding pro se, has submitted a Petition for Writ of 19 Habeas Corpus pursuant to 28 U.S.C. § 2254 , together with a request to proceed in forma 20 pauperis. (ECF Nos. 1 & 2.) 21 APPLICATION TO PROCEED IN FORMA PAUPERIS 22 According to Petitioner’s trust account statement, Petitioner has no funds on 23 account at the California correctional institution in which he is presently confined. 24 Petitioner cannot afford the $5.00 filing fee. Thus, the Court GRANTS Petitioner’s 25 application to proceed in forma pauperis, and allows Petitioner to prosecute the above26 referenced action without being required to prepay fees or costs and without being 27 required to post security. The Clerk of the Court shall file the Petition for Writ of Habeas 28 Corpus without prepayment of the filing fee. 1 FAILURE TO ALLEGE EXHAUSTION OF STATE JUDICIAL REMEDIES 2 Habeas petitioners who wish to challenge either their state court conviction or the 3 length of their confinement in state prison, must first exhaust state judicial remedies. 28 4 U.S.C. § 2254 (b), (c); Granberry v. Greer, 481 U.S. 129, 133-34 (1987). To exhaust state 5 judicial remedies, a California state prisoner must present the California Supreme Court 6 with a fair opportunity to rule on the merits of every issue raised in his or her federal 7 habeas petition. 28 U.S.C. § 2254 (b), (c); Granberry, 481 U.S. at 133-34 . Moreover, to 8 properly exhaust state court remedies a petitioner must allege, in state court, how one or 9 more of his or her federal rights have been violated. The Supreme Court in Duncan v. 10 Henry, 513 U.S. 364 (1995) reasoned: “If state courts are to be given the opportunity to 11 correct alleged violations of prisoners’ federal rights, they must surely be alerted to the 12 fact that the prisoners are asserting claims under the United States Constitution.” Id. at 13 365-66 (emphasis added). For example, “[i]f a habeas petitioner wishes to claim that an 14 evidentiary ruling at a state court trial denied him [or her] the due process of law 15 guaranteed by the Fourteenth Amendment, he [or she] must say so, not only in federal 16 court, but in state court.” Id. at 366 (emphasis added). 17 Nowhere on the Petition does Petitioner allege that he raised his claims in the 18 California Supreme Court. In fact, he specifically indicates he did not seek such review. 19 (See Pet., ECF No. 1 at 3, 5.) If Petitioner has raised his claims in the California Supreme 20 Court he must so specify. “The burden of proving that a claim has been exhausted lies 21 with the petitioner.” Matthews v. Evatt, 105 F.3d 907, 911 (4th Cir. 1997); see Breard v. 22 Pruett, 134 F.3d 615, 619 (4th Cir. 1998); Lambert v. Blackwell, 134 F.3d 506, 513 (3d 23 Cir. 1997); Oyler v. Allenbrand, 23 F.3d 292, 300 (10th Cir. 1994); Rust v. Zent, 17 F.3d 24 155, 160 (6th Cir. 1994). 25 Further, the Court cautions Petitioner that under the Antiterrorism and Effective 26 Death Penalty Act of 1996 (AEDPA) a one-year period of limitation shall apply to a 27 petition for a writ of habeas corpus by a person in custody pursuant to the judgment of a 28 State court. The limitation period shall run from the latest of: 1 (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; [2] 3 (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 [4] removed, if the applicant was prevented from filing by such State action; [5] (C) the date on which the constitutional right asserted was initially [6] recognized by the Supreme Court, if the right has been newly recognized by 7 the Supreme Court and made retroactively applicable to cases on collateral review; or [8] 9 (D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence. [11] 28 U.S.C. § 2244 (d)(1)(A)-(D) (West 2006). 12 The statute of limitations does not run while a properly filed state habeas corpus 13 petition is pending. 28 U.S.C. § 2244 (d)(2); see Nino v. Galaza, 183 F.3d 1003, 1006 (9th 14 Cir. 1999). But see Artuz v. Bennett, 531 U.S. 4, 8 (2000) (holding that “an application is 15 ‘properly filed’ when its delivery and acceptance [by the appropriate court officer for 16 placement into the record] are in compliance with the applicable laws and rules 17 governing filings.”). However, absent some other basis for tolling, the statute of 18 limitations does run while a federal habeas petition is pending. Duncan v. Walker, 533 19 U.S. 167, 181-82 (2001). 20 Rule 4 of the Rules Governing Section 2254 Cases provides for summary dismissal 21 of a habeas petition “[i]f it plainly appears from the face of the petition and any exhibits 22 annexed to it that the petitioner is not entitled to relief in the district court . . .” Rule 4, 28 23 U.S.C. foll. § 2254. Here, it appears plain from the Petition that Petitioner is not presently 24 entitled to federal habeas relief because he has not alleged exhaustion of state court 25 remedies and as such the Petition must be DISMISSED. 26 CONCLUSION 27 For the reasons discussed above, the Court GRANTS Petitioner’s request to 28 proceed in forma pauperis and DISMISSES the case without prejudice and with leave to 1 ||amend for failure to allege exhaustion of state judicial remedies. To have the case 2 reopened, Petitioner must, no later than June 25, 2021, file a First Amended Petition 3 || which cures the pleading deficiency outlined in this Order.! For Petitioner’s convenience, 4 || the Clerk of Court shall include a blank First Amended Petition form with this Order. 5 IT IS SO ORDERED. 6 Dated: May 4, 2021 <= 7 Hon. Gonzalo P. Curiel 8 United States District Judge [10] 1] [25] ' When a petition is fully unexhausted or contains both exhausted and unexhausted claims, a petitioner 26 || may request a stay of the petition in order to complete exhaustion in state court by filing a Motion to Stay the Petition. Such a stay is available only where (1) good cause is shown for petitioner’s failure to 27 || have exhausted all claims in state court prior to filing the federal petition, (2) the unexhausted claim or 28 claims potentially have merit, and (3) there is no indication that petitioner has intentionally delayed pursuing the litigation. Rhines v. Weber, 544 U.S. 269 , 277—78 (2005).