Opinion
Civil No. 11-2787 BEN (PCL)
02-08-2012
LEE QUILLAR, Petitioner, v. DISTRICT ATTORNEY'S OFFICE FOR THE NINTH JUDICIAL DISTRICT, et al., Respondents.
ORDER:
(1) GRANTING APPLICATION TO PROCEED IN FORMA PAUPERIS,
(2) DISMISSING CASE WITHOUT PREJUDICE,
(3) DENYING MOTION FOR SCHEDULING ORDER AS MOOT
Petitioner, a state prisoner proceeding pro se, has filed a document which this Court construes liberally, as a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. He has also filed a copy of his prison trust account statement, which this Court construes as a request to proceed in forma pauperis.
REQUEST TO PROCEED IN FORMA PAUPERIS
Petitioner has no funds account at the California correctional institution in which he is presently confined. Petitioner cannot afford the $5.00 filing fee. Thus, the Court GRANTS Petitioner's application to proceed in forma pauperis, and allows Petitioner to prosecute the above-referenced action as a poor person without being required to prepay fees or costs and without being required to post security. The Clerk of the Court shall file the Petition for Writ of Habeas Corpus without prepayment of the filing fee.
FAILURE TO NAME PROPER RESPONDENT
Review of the Petition reveals that Petitioner has failed to name a proper respondent. On federal habeas, a state prisoner must name the state officer having custody of him as the respondent. Ortiz-Sandoval v. Gomez, 81 F.3d 891, 894 (9th Cir. 1996) (citing Rule 2(a), 28 U.S.C. foil. § 2254). Federal courts lack personal jurisdiction when a habeas petition fails to name a proper respondent. See id.
The warden is the typical respondent. However, "the rules following section 2254 do not specify the warden." Id. "[T]he 'state officer having custody' may be 'either the warden of the institution in which the petitioner is incarcerated ... or the chief officer in charge of state penal institutions."' Id. (quoting Rule 2(a), 28 U.S.C. foil. § 2254 advisory committee's note). If "a petitioner is in custody due to the state action he is challenging, '[t]he named respondent shall be the state officer who has official custody of the petitioner (for example, the warden of the prison).'" Id. (quoting Rule 2, 28 U.S.C. foil. § 2254 advisory committee's note).
A long standing rule in the Ninth Circuit holds "that a petitioner may not seek [a writ of] habeas corpus against the State under... [whose] authority ... the petitioner is in custody. The actual person who is [the] custodian [of the petitioner] must be the respondent." Ashley v. Washington, 394 F.2d 125, 126 (9th Cir. 1968). This requirement exists because a writ of habeas corpus acts upon the custodian of the state prisoner, the person who will produce "the body" if directed to do so by the Court. "Both the warden of a California prison and the Director of Corrections for California have the power to produce the prisoner." Ortiz-Sandoval, 81 F.3d at 895.
Here, Petitioner has incorrectly named "District Attorney's Office for the Ninth Judicial District," "Lori Koster," "Tammy L. Nielsen," "Salvatore Tarantino," and Elizabeth A. Barranco" as Respondents. In order for this Court to entertain the Petition filed in this action, Petitioner must name the warden in charge of the state correctional facility in which Petitioner is presently confined or the Secretary of the California Department of Corrections and Rehabilitation. Brittingham v. United States, 982 F.2d 378, 379 (9th Cir. 1992) (per curiam).
FAILURE TO STATE A COGNIZABLE FEDERAL CLAIM
Additionally, in accordance with Rule 4 of the rules governing § 2254 cases, Petitioner has failed to allege that his state court conviction or sentence violates the Constitution of the United States.
Title 28, United States Code, § 2254(a), sets forth the following scope of review for federal habeas corpus claims:
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 custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.28 U.S.C. § 2254(a) (emphasis added). See Hernandez v. Ylst, 930 F.2d 714, 719 (9th Cir. 1991); Mannhalt v. Reed, 847 F.2d 576, 579 (9th Cir. 1988); Kealohapauole v. Shimoda, 800 F.2d 1463, 1464-65 (9th Cir. 1986). Thus, to present a cognizable federal habeas corpus claim under § 2254, a state prisoner must allege both that he is in custody pursuant to a "judgment of a State court," and that he is in custody in "violation of the Constitution or laws or treaties of the United States." See 28 U.S.C. § 2254(a).
Here, Petitioner asks this Court for an "order to perpetuate testimony" of Respondents. (Pet. at 1.) He in no way claims he is "in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254. To the extent Petitioner alleges a constitutional violation, he does no assert he is "in custody" as a result.
The Court notes that Petitioner challenged his 1997 conviction for assault with a deadly weapon, arson, and false imprisonment, with a petition for writ of habeas corpus filed in 2001. This Court denied that Petition on the merits on May 29, 2003. See Quillar v. Ramirez-Palmer, 01cv0268 BTM (BEN) [Doc. No. 60]. Subsequent petitions for habeas corpus filed by Petitioner which challenged the same convictions have been summarily dismissed as second or successive by this Court. See Quillar v. Almager, 06cv2286 H (AJB) [Doc. No. 2]; Qullar v. Kramer, 08cv0194 IEG (AJB) [Doc. No. 3]; Quillar v. Evans, 09cvl649 JAH (JMA) [Doc. No. 3].
Further, the Court notes that Petitioner cannot simply amend his Petition to state a federal habeas claim and then refile the amended petition in this case. He must exhaust state judicial remedies before bringing his claims via federal habeas. State prisoners who wish to challenge their state court conviction must first exhaust state judicial remedies. 28 U.S.C. § 2254(b), (c); Granberry v. Greer, 481 U.S. 129, 133-34 (1987). To exhaust state judicial remedies, a California state prisoner must present the California Supreme Court with a fair opportunity to rule on the merits of every issue raised in his or her federal habeas petition. See 28 U.S.C. § 2254(b), (c); Granberry, 481 U.S. at 133-34. Moreover, to properly exhaust state court judicial remedies a petitioner must allege, in state court, how one or more of his or her federal rights have been violated. The Supreme Court in Duncan v. Henry, 513 U.S. 364 (1995) reasoned: "If state courts are to be given the opportunity to correct alleged violations of prisoners' federal rights, they must surely be alerted to the fact that the prisoners are asserting claims under the United States Constitution." Id. at 365-66 (emphasis added). For example, "[i]f a habeas petitioner wishes to claim that an evidentiary ruling at a state court trial denied him the due process of law guaranteed by the Fourteenth Amendment, he must say so, not only in federal court, but in state court." Id. (emphasis added).
Additionally, the Court cautions Petitioner that under the Antiterrorism and Effective Death Penalty Act of 1996 (Act), signed into law on April 24, 1996, a one-year period of limitation shall apply to a petition for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of:
(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;28 U.S.C. § 2244(d)(l)(A)-(D) (West Supp. 2002).
(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, if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.
The Court also notes that the statute of limitations does not run while a properly filed state habeas corpus petition is pending. 28 U.S.C. § 2244(d)(2); see Nino v. Galaza, 183 F.3d 1003, 1006 (9th Cir. 1999). But see Artuz v. Bennett, 531 U.S. 4, 8 (2000) (holding that "an application is 'properly filed' when its delivery and acceptance [by the appropriate court officer for placement into the record] are in compliance with the applicable laws and rules governing filings."). However, absent some other basis for tolling, the statute of limitations does run while a federal habeas petition is pending. Duncan v. Walker, 533 U.S. 167, 181-82 (2001).
MOTION FOR SCHEDULING ORDER
On January 3, 2012, Petitioner filed a motion for scheduling order. Because the Petition must be dismissed for the reasons discussed above, the motion is DENIED as moot.
CONCLUSION
Based on the foregoing, Petitioner's application to proceed in forma pauperis is GRANTED and the Petition is DISMISSED without prejudice. Petitioner's motion for scheduling order is DENIED as moot.
IT IS SO ORDERED
_____________________
Roger T. Benitez
United States District Judge
CC: ALL PARTIES