Opinion
Civil No. 14cv0448-WQH (WVG)
03-06-2014
GEORGE AUSTIN, Petitioner, v. A. W. HEDRICK, et al., Respondent.
ORDER GRANTING APPLICATION
TO PROCEED IN FORMA PAUPERIS,
AND DISMISSING PETITION
WITHOUT PREJUDICE (1) FOR
FAILURE TO NAME PROPER
RESPONDENT, (2) FOR FAILURE TO
STATE GROUNDS FOR RELIEF IN
THE PETITION, AND (3) FOR
FAILURE TO ALLEGE EXHAUSTION
Petitioner, a state prisoner proceeding pro se, has submitted a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254, together with a Prisoner Trust Fund Account Statement.
REQUEST TO PROCEED IN FORMA PAUPERIS
The Court construes Petitioner's authenticated certificate of trust account funds filed along with his petition as an application to proceed in forma pauperis. (ECF No. 2.) Petitioner has $0.00 on account at the California correctional institution in which he is presently confined. The Court accordingly grants Petitioner leave 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.
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 foil. U.S.C. § 2254). "Typically, this person is the warden of the facility in which the petitioner is incarcerated." 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 foil. U.S.C. § 2254 advisory committee's note). Federal courts lack personal jurisdiction when a habeas petition fails to name a proper respondent. See id.
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 as Respondents "A. W. Hedrick" and John Peterson" with no indication of their official capacities. Petitioner is presently incarcerated at Salinas Valley State Prison in Soledad, California, and neither of the named Respondents is the warden of that prison, nor is either one the Secretary of the California Department of Corrections and Rehabilitation. In order for this Court to entertain a Petition for Writ of Habeas Corpus, Petitioner must name the warden or state officer in charge of the state correctional facility in which he is presently confined. Brittingham v. United States, 982 F.2d 378, 379 (9th Cir. 1992) (per curiam). Accordingly, the Court dismisses this case without prejudice for Petitioner's failure to name a proper respondent.
FAILURE TO STATE GROUNDS FOR RELIEF IN PETITION
Rule 2(c) of the Rules Governing Section 2254 Cases states that the petition must "specify all grounds for relief available to the petitioner [and] state the facts supporting each ground." Rule 2(c), 28 U.S.C. foil. § 2254. See also Boehme v. Maxwell, 423 F.2d 1056,1058 (9th Cir. 1970) (trial court's dismissal of federal habeas proceeding affirmed where petitioner made conclusory allegations instead of factual allegations showing that he was entitled to relief). In order to satisfy Rule 2(c), Petitioner must point to a "real possibility of constitutional error." Cf. Blackledge v. Allison, 431 U.S. 63, 75 n.7 (1977) (internal quotation marks omitted). Facts must be stated, in the petition, with sufficient detail to enable the Court to determine, from the face of the petition, whether further habeas corpus review is warranted. Adams v. Armontrout, 897 F.2d 332,334 (8th Cir. 1990). Moreover, the allegations should be sufficiently specific to permit the respondent to assert appropriate objections and defenses. Harris v. Allen, 739 F. Supp. 564, 565 (W.D. Okla. 1989). Here, Petitioner has violated Rule 2(c) by failing to allege facts and failing to state any particular ground for relief whatsoever.
Due to Petitioner's unsatisfactory showing on these requirements, the Court dismisses the action without prejudice. Should Petitioner decide to file an amended or a new petition, he is advised to clearly and succinctly state all grounds for relief as well as supporting facts.
FAILURE TO ALLEGE EXHAUSTION OF STATE JUDICIAL REMEDIES
In addition to remedying the defects identified above, if Petitioner files an amended petition which contains grounds for relief, Petitioner must allege exhaustion of state court remedies. Habeas petitioners who wish to challenge either their state court conviction or the length of their confinement in state prison must first exhaust state judicial remedies. 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. 28 U.S.C. S 2254(b), (c): Granberry v. Greer, 481 U.S. 129, 133-34(1987). Moreover, to properly exhaust state court 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 [or her] the due process of law guaranteed by the Fourteenth Amendment, he [or she] must say so, not only in federal court, but in state court." Id. at 366.
Here, Petitioner has not presented any cognizable federal claim or indicated in the petition that he has exhausted state judicial remedies as to any such claim. The burden of pleading a cognizable claim and exhaustion of that claim lies with the petitioner. Cartwright v. Cupp, 650 F.2d 1103, 1104 (9th Cir.1981).
Further, the Court cautions Petitioner that under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) a one-year period of limitation shall apply to a petition for a writ of habeas corpus by aperson 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.A. § 2244(d)(1)(A)-(D) (West 2006).
(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 nave been discovered through the exercise of due diligence.
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); see also 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).
Rule 4 of the Rules Governing Section 2254 Cases provides for summary dismissal of a habeas petition "[i]f it plainly appears from the face of the petition and any attached exhibits that the petitioner is not entitled to relief in the district court . . ." Rule 4, 28 U.S.C. foil. § 2254. It appears plain from this Petition that Petitioner is not presently entitled to federal habeas relief.
CONCLUSION
Based on the foregoing, the Court hereby 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 Court shall file the Petition for Writ of Habeas Corpus without prepayment of the filing fee. However, the Court DISMISSES this action, without prejudice, because Petitioner has failed to name a proper respondent, failed to state a cognizable claim, and failed to allege exhaustion of state judicial remedies. To have this case reopened, Petitioner must file a First Amended Petition, with a copy of this Order attached, no later than May 2, 2014 that cures the pleading deficiencies identified herein. Petitioner is further advised that if he does not file a First Amended Petition in this case by that date, he will have to start over by filing a completely new habeas petition in this Court. See In re Turner, 101 F.3d 1323 (9th Cir. 1997).
The Clerk of Court is instructed to provide Petitioner with a blank First Amended Petition form for Petitioner's convenience along with this Order.
IT IS SO ORDERED.
__________
HON. WILIAM Q. HAYES
United States District Judge