1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 DWAYNE RUSSELL CONYERS, Case No. 19cv1320-BAS-AHG 12 Petitioner, ORDER DISMISSING CASE 13 v. WITHOUT PREJUDICE 14 UNITED STATES DISTRICT COURT, 15 Respondent. 16 17 Petitioner is a state prisoner proceeding pro se with a Petition for a Writ of Habeas 18 Corpus pursuant to

. (ECF No. 1.) The Petition is subject to dismissal 19 without prejudice because Petitioner has failed to satisfy the filing fee requirement, failed 20 to name a proper respondent, failed to allege exhaustion of state court remedies and failed 21 to state a claim cognizable on federal habeas. 22 FILING FEE REQUIREMENT 23 Petitioner has failed to pay the $5.00 filing fee or submit a request to proceed in 24 forma pauperis. This Court cannot proceed until Petitioner has either paid the $5.00 filing 25 fee or qualified to proceed in forma pauperis. 26 FAILURE TO NAME A PROPER RESPONDENT 27 On federal habeas, a state prisoner must name the state officer having custody of 28 him as the respondent. Ortiz-Sandoval v. Gomez,

(9th Cir. 1996) (citing 1 Rule 2(a), 28 U.S.C. foll. § 2254). “Typically, that person is the warden of the facility in 2 which the petitioner is incarcerated.” Id. Federal courts lack personal jurisdiction when a 3 habeas petition fails to name a proper respondent. See id. 4 The warden is the typical respondent. However, “the rules following section 2254 5 do not specify the warden.” Id. “[T]he ‘state officer having custody’ may be ‘either the 6 warden of the institution in which the petitioner is incarcerated . . . or the chief officer in 7 charge of state penal institutions.’” Id. (quoting Rule 2(a), 28 U.S.C. foll. § 2254 advisory 8 committee’s note). If “a petitioner is in custody due to the state action he is challenging, 9 ‘[t]he named respondent shall be the state officer who has official custody of the petitioner 10 (for example, the warden of the prison).’” Id. (quoting Rule 2, 28 U.S.C. foll. § 2254 11 advisory committee’s note). This requirement exists because a writ of habeas corpus acts 12 upon the custodian of the state prisoner, the person who will produce “the body” if directed 13 to do so by the Court. “Both the warden of a California prison and the Director of 14 Corrections for California have the power to produce the prisoner.” Ortiz-Sandoval, 81 15 F.3d at 895. 16 Here, Petitioner has named the United States District Court as Respondent. In order 17 for this Court to entertain the Petition, Petitioner must name the warden in charge of the 18 state correctional facility in which he is presently confined or the Secretary of the California 19 Department of Corrections and Rehabilitation. Brittingham v. United States,

, 20 379 (9th Cir. 1992) (per curiam). 21 EXHAUSTION OF STATE COURT REMEDIES 22 Federal habeas petitioners who wish to challenge either their state court conviction 23 or the length of their confinement in state prison must first exhaust state judicial remedies. 24

(b), (c); Granberry v. Greer,

(1987). To exhaust 25 state judicial remedies, a California state prisoner must present the California Supreme 26 Court with a fair opportunity to rule on the merits of every issue raised in his or her federal 27 habeas petition.

(b), (c); Granberry,

. Moreover, to 28 properly exhaust state court remedies a petitioner must allege, in state court, how one or 1 more of his or her federal rights have been violated. The Supreme Court in Duncan v. 2 Henry,

(1995), reasoned: “If state courts are to be given the opportunity to 3 correct alleged violations of prisoners’ federal rights, they must surely be alerted to the fact 4 that the prisoners are asserting claims under the United States Constitution.”

at 365-66 5 (emphasis added). For example, “[i]f a habeas petitioner wishes to claim that an 6 evidentiary ruling at a state court trial denied him [or her] the due process of law guaranteed 7 by the Fourteenth Amendment, he [or she] must say so, not only in federal court, but in 8 state court.”

(emphasis added). 9 Petitioner states that he has presented his claims only to the state superior court (ECF 10 No. 1 at 5-8, 3-14), and there is no indication that he has presented his claims to the state 11 supreme court. If Petitioner has raised his claims in the California Supreme Court he must 12 so specify. The burden of proving a claim has been exhausted lies with Petitioner. 13 Cartwright v. Cupp,

(9th Cir. 1981). 14 FAILURE TO STATE A COGNIZABLE FEDERAL CLAIM 15 Additionally, in accordance with Rule 4 of the rules governing § 2254 cases, 16 Petitioner has failed to allege that his state court conviction or sentence violates the 17 Constitution of the United States. Title

(a), sets forth the 18 following scope of review for federal habeas corpus claims: 19 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 20 custody pursuant to the judgment of a State court only on the ground that he 21 is in custody in violation of the Constitution or laws or treaties of the United States. 22

23

(a). Thus, to present a cognizable federal habeas corpus claim under 24 § 2254, a state prisoner must allege both that he is in custody pursuant to a “judgment of a 25 State court,” and that he is in custody in “violation of the Constitution or laws or treaties 26 of the United States.” Id. 27 Here, Petitioner challenges the denial by the state superior court of his petition for a 28 modification of his sentence under Senate Bill 1393, which provides discretion to trial 1 courts to strike or dismiss in the interests of justice prior serious or violent felony 2 convictions used to enhance sentences. (ECF No. 1 at 3, 13-14.) Petitioner claims the state 3 court erred in refusing to strike his two five-year enhancements, apparently on the basis 4 that the court refused to recognize that his robbery convictions are nonviolent offenses, but 5 in no way does he claim he is “in custody in violation of the Constitution or laws or treaties 6 of the United States.”

(a). Although he includes citations to federal cases 7 providing guidance in determining whether certain state crimes are considered violent 8 crimes within the meaning of federal statutes (see ECF No. 1 at 3, 12), his state court 9 petition for resentencing was denied because he was not eligible for relief since his 10 conviction was final prior to enactment of Senate Bill 1393 (id. at 13-14), and he does not 11 indicate why, or if, he contends he is “in custody in violation of the Constitution or laws or 12 treaties of the United States.”

(a). 13 The Court cautions Petitioner that a one-year period of limitation applies to a petition 14 for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. 15 The limitation period shall run from the latest of: 16 (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; 17

18 (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 19 removed, if the applicant was prevented from filing by such State action; 20 (C) the date on which the constitutional right asserted was initially 21 recognized by the Supreme Court, if the right has been newly recognized by 22 the Supreme Court and made retroactively applicable to cases on collateral review; or 23

24 (D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence. 25

26

(d)(1)(A)-(D) (West 2019). 27 The statute of limitations does not run while a properly filed state habeas corpus 28 petition is pending.

(d)(2); see Nino v. Galaza,

(9th 1 Cir. 1999). But see Artuz v. Bennett,

(2000) (holding that “an application is 2 ‘properly filed’ when its delivery and acceptance [by the appropriate court officer for 3 placement into the record] are in compliance with the applicable laws and rules governing 4 filings.”) However, absent some other basis for tolling, the statute of limitations does run 5 while a federal habeas petition is pending. Duncan v. Walker,

(2001). 6 CONCLUSION AND ORDER 7 Rule 4 of the Rules Governing Section 2254 Cases provides for summary dismissal 8 of a habeas petition “[i]f it plainly appears from the face of the petition and any attached 9 exhibits that the petitioner is not entitled to relief in the district court . . .” Rule 4, 28 U.S.C. 10 foll. § 2254. Based on the foregoing, the Court DISMISSES this action without prejudice 11 because Petitioner has failed to satisfy the filing fee requirement, failed to name a proper 12 respondent, failed to allege exhaustion of state judicial remedies and failed to state a 13 cognizable federal claim. To have this case reopened, Petitioner must either pay the filing 14 fee or submit an application to proceed in forma pauperis and file a First Amended Petition 15 that cures the pleading deficiencies set forth above no later than December 2, 2019. 16 The Court notes that Petitioner is currently proceeding with a habeas petition in this 17 Court in So.Dist.Ca. Civil Case No. 18cv0085-JLS (KSC), in which he challenges the state 18 court conviction upon which the sentence he petitioned the state court to modify is based, 19 the denial of which he challenges in this action, and which is currently stayed pending 20 exhaustion of state court remedies. See Order filed 1/29/18 [ECF No. 18] in So.Dist.Ca. 21 Civil Case No. 18cv0085-JLS (KSC). Petitioner currently has pending a motion to amend 22 in that case, see Motion to Amend filed 8/16/19 [ECF No. 21] in So.Dist.Ca. Civil Case 23 No. 18cv0085-JLS (KSC), in which he seeks to include a claim which, like the one raised 24 here, was unexhausted when he filed his federal petition in that case. Compare id. at 6-9 25 with Pet. filed 1/12/18 [ECF No. 1] at 6-9 in So.Dist.Ca. Civil Case No. 18cv0085-JLS 26 (KSC). Rather than file an amended petition in this case, Petitioner may seek leave to 27 amend or supplement his petition in that first case to include the claim raised here which 28 / / / 1 || apparently rose after he initiated the first case and, like the claim he seeks to amend to add 2 the first case, was not exhausted at the time he filed that first petition. 3 IT IS SO ORDERED. 4 5 || DATED: October 2, 2019 (pillu.g | Bioha wh 6 United States District Judge 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28