Lewis v. R.J. Donovan

[7] 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA [10] KENNETH LEWIS, Case No.: 21-cv-01266-BAS-KSC [11] Petitioner, ORDER DISMISSING CASE 12 WITHOUT PREJUDICE AND v. WITH LEAVE TO AMEND [13] R.J. DONOVAN, [14] Respondent. [15] 16 Petitioner, a state prisoner proceeding pro se, has not paid the $5.00 filing fee and 17 has filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 . 18 I. FAILURE TO SATISFY FILING FEE REQUIREMENT 19 Petitioner has failed to pay the $5.00 filing fee and has failed to move to proceed in 20 forma pauperis. This Court cannot proceed until Petitioner has either paid the $5.00 filing 21 fee or qualified to proceed in forma pauperis. See Rule 3(a), 28 U.S.C. foll. § 2254. 22 II. FAILURE TO NAME PROPER RESPONDENT 23 Review of the Petition reveals that Petitioner has failed to name a proper respondent. 24 On federal habeas, a state prisoner must name the state officer having custody of him as 25 the respondent. Ortiz-Sandoval v. Gomez, 81 F.3d 891, 894 (9th Cir. 1996) (citing Rule 26 2(a), 28 U.S.C. foll. § 2254). Federal courts lack personal jurisdiction when a habeas 27 petition fails to name a proper respondent. See id. [28] 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 advisory 5 committee’s note). If “a petitioner is in custody due to the state action he is challenging, 6 ‘[t]he named respondent shall be the state officer who has official custody of the petitioner 7 (for example, the warden of the prison).’” Id. (quoting Rule 2, 28 U.S.C. foll. § 2254 8 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 in 11 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 “R.J. Donovan” as Respondent. In order for 18 this Court to entertain the Petition filed in this action, Petitioner must name the warden in 19 charge of the state correctional facility in which Petitioner is presently confined or the 20 Director of the California Department of Corrections. Brittingham v. United States, 982 21 F.2d 378, 379 (9th Cir. 1992) (per curiam). 22 III. FAILURE TO ALLEGE EXHAUSTION OF STATE JUDICIAL REMEDIES 23 Further, habeas petitioners who wish to challenge either their state court conviction 24 or the length of their confinement in state prison must first exhaust state judicial remedies. [25] 28 U.S.C. § 2254 (b), (c); Granberry v. Greer, 481 U.S. 129 , 133–34 (1987). Ordinarily, 26 to satisfy the exhaustion requirement, a petitioner must “fairly present[] his federal claim 27 to the highest state court with jurisdiction to consider it . . . or . . . demonstrate[] that no 28 state remedy remains available. Johnson v. Zenon, 88 F.3d 828, 829 (9th Cir. 1996) (citing 1 Picard v. Connor, 404 U.S. 270, 275 (1971) and Anderson v. Harless, 459 U.S. 4 , 6 2 (1982)). Moreover, to properly exhaust state court remedies a petitioner must allege, in 3 state court, how one or more of his or her federal rights have been violated. For example, 4 “[i]f a habeas petitioner wishes to claim that an evidentiary ruling at a state court trial 5 denied him [or her] the due process of law guaranteed by the Fourteenth Amendment, he 6 [or she] must say so, not only in federal court, but in state court.” See Duncan v. Henry, [7] 513 U.S. 364, 365-66 (1995). Petitioner does not allege that he raised his claims in the 8 California Supreme Court. If Petitioner has raised his claims in the California Supreme 9 Court he must so specify. 10 Further, the Court cautions Petitioner that under the Antiterrorism and Effective 11 Death Penalty Act of 1996 (AEDPA) a one-year period of limitation shall apply to a 12 petition for a writ of habeas corpus by a person in custody pursuant to the judgment of a 13 State court. The limitation period shall run from the latest of: 14 (A) the date on which the judgment became final by the conclusion of direct 15 review or the expiration of the time for seeking such review; 16 (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, [17] if the applicant was prevented from filing by such State action; [18] (C) the date on which the constitutional right asserted was initially recognized [19] by the Supreme Court, if the right has been newly recognized by the Supreme 20 Court and made retroactively applicable to cases on collateral review; or 21 (D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence. [23] 28 U.S.C.A. § 2244 (d)(1)(A)–(D) (West Supp. 2020). 24 The statute of limitations does not run while a properly filed state habeas corpus 25 petition is pending. 28 U.S.C. § 2244 (d)(2); see Nino v. Galaza, 183 F.3d 1003, 1006 (9th 26 Cir. 1999); but see Artuz v. Bennett, 531 U.S. 4, 8 (2000) (holding that “an application is 27 ‘properly filed’ when its delivery and acceptance [by the appropriate court officer for 28 placement into the record] are in compliance with the applicable laws and rules governing 1 filings”). However, absent some other basis for tolling, the statute of limitations does run 2 while a federal habeas petition is pending. Duncan v. Walker, 533 U.S. 167 , 181–82 3 (2001). 4 IV. FAILURE TO STATE A COGNIZABLE FEDERAL CLAIM 5 Additionally, in accordance with Rule 4 of the rules governing § 2254 cases, 6 Petitioner has failed to allege that his state court conviction or sentence violates the 7 Constitution of the United States. 8 Title 28, United States Code, § 2254 (a), sets forth the following scope of review for 9 federal habeas corpus claims: 10 The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an application for a writ of habeas corpus on behalf of a person in [11] custody pursuant to the judgment of a State court only on the ground that he 12 is in custody in violation of the Constitution or laws or treaties of the United States. [14] 28 U.S.C. § 2254 (a); see Hernandez v. Ylst, 930 F.2d 714, 719 (9th Cir. 1991). Thus, to 15 present a cognizable federal habeas corpus claim under § 2254, a state prisoner must allege 16 both that he is in custody pursuant to a “judgment of a State court,” and that he is in custody 17 in “violation of the Constitution or laws or treaties of the United States.” See 28 U.S.C. 18 § 2254(a). 19 Here, in ground one, Petitioner states that “I did not have many ground on this matter 20 but took a plea bargain for the claims of getting released soon,” and in ground two, states 21 “the claim that I have been incarcerated for a long time for a plea bargain case number of 22 sentencing me [unintelligible] and I think that it’s about time the court do their laws of the 23 people.” (Pet. at 3–4, ECF No. 1.) In no way does Petitioner claim he is “in custody in 24 violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254 . 25 V. FAILURE TO SIGN PETITION 26 Finally, Rule 2(c) of the Rules Governing Section 2254 Cases provides that “[t]he 27 petition shall be typewritten or legibly handwritten and shall be signed under penalty of 28 perjury by the petitioner.” Here, Petitioner has failed to sign the Petition. 1 |) VI. CONCLUSION 2 For all the foregoing reasons, the Court DISMISSES this case without prejudice 3 || and with leave to amend. If Petitioner wishes to proceed with this case, he must submit, 4 later than October 4, 2021: (1) a copy of this Order with the $5.00 fee OR a motion 5 || to proceed in forma pauperis; AND (2) a First Amended Petition which cures the pleading 6 || deficiencies outlined in this Order. The Clerk of Court is directed to mail Petitioner a 7 || blank motion to proceed in forma pauperis form and a blank petition for writ of habeas 8 || corpus pursuant to 28 U.S.C. § 2254 form together with a copy of this Order. 9 IT IS SO ORDERED. 10 A. □□ 11 || DATED: July 30, 2021 sill A Hishaa □ 12 United States District Judge