1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 HECTOR GAXIOLA, Case No.: 20-CV-279 JLS (NLS)

12 Petitioner, ORDER DISMISSING PETITION 13 v. WITHOUT PREJUDICE AND WITH LEAVE TO AMEND 14 U.S. MARSHALS, 15 Respondent. 16 17 Petitioner, a state prisoner proceeding pro se, has filed a Petition for Writ of Habeas 18 Corpus pursuant to

. See generally ECF No. 1 (“Pet.”). 19 FAILURE TO SATISFY FILING FEE REQUIREMENT 20 Petitioner has failed to pay the $5.00 filing fee and has failed to move to proceed in 21 forma pauperis. Because this Court cannot proceed until Petitioner has either paid the 22 $5.00 filing fee or qualified to proceed in forma pauperis, the Court DISMISSES the 23 Petition without prejudice. See Rule 3(a), 28 U.S.C. foll. § 2254. If Petitioner wishes to 24 proceed, he must submit, no later than April 27, 2020, a copy of this Order with the $5.00 25 fee or with adequate proof of his inability to pay the fee. 26 / / / 27 / / / 28 / / / 1 FAILURE TO STATE A COGNIZABLE CLAIM 2 Additionally, in accordance with Rule 4 of the rules governing § 2254 cases, 3 Petitioner has failed to allege that his state court conviction or sentence violates the 4 Constitution of the United States. 5 Section 2254(a) of Title 28 of the United States Code sets forth the following scope 6 of review for federal habeas corpus claims: 7 The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an application for a writ of habeas corpus in 8 behalf of a person in custody pursuant to the judgment of a State 9 court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States. 10

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(a) (emphasis added); see Hernandez v. Ylst,

(9th Cir. 12 1991); Mannhalt v. Reed,

(9th Cir. 1988); Kealohapauole v. Shimoda, 13

, 1464–65 (9th Cir. 1986). Thus, to present a cognizable federal habeas 14 corpus claim under § 2254, a state prisoner must allege both that he is in custody pursuant 15 to a “judgment of a State court,” and that he is in custody in “violation of the Constitution 16 or laws or treaties of the United States.” See

(a). 17 Here, Petitioner requests that his “state [sentence] run concurrent with my fed[eral] 18 violation . . . so that I can be release[d] from a state facility prison.” Pet. at 4. In no way 19 does Petitioner claim he is “in custody in violation of the Constitution or laws or treaties 20 of the United States.”

(a). As such, he has failed to state a cognizable 21 claim on federal habeas. Rule 4 of the Rules Governing Section 2254 Cases provides for 22 summary dismissal of a habeas petition “[i]f it plainly appears from the face of the petition 23 and any exhibits annexed to it that the petitioner is not entitled to relief in the district court.” 24 Rule 4, 28 U.S.C. foll. § 2254. It appears plain from the Petition that Petitioner is not 25 presently entitled to federal habeas relief because he has not alleged a cognizable claim. 26 FAILURE TO ALLEGE EXHAUSTION OF STATE JUDICIAL REMEDIES 27 Further, habeas petitioners who wish to challenge either their state court conviction 28 or the length of their confinement in state prison must first exhaust state judicial remedies. 1

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

, 133–34 (1987). To exhaust 2 state judicial remedies, a California state prisoner must present the California Supreme 3 Court with a fair opportunity to rule on the merits of every issue raised in his or her federal 4 habeas petition.

(b), (c); Granberry, 481 U.S. at 133–34. Further, to 5 properly exhaust state court remedies, a petitioner must allege, in state court, how one or 6 more of his or her federal rights have been violated. The Supreme Court in Duncan v. 7 Henry,

(1995), reasoned that, “[i]f state courts are to be given the opportunity 8 to correct alleged violations of prisoners’ federal rights, they must surely be alerted to the 9 fact that the prisoners are asserting claims under the United States Constitution.”

at 10 365–66. For example, “[i]f a habeas petitioner wishes to claim that an evidentiary ruling 11 at a state court trial denied him [or her] the due process of law guaranteed by the Fourteenth 12 Amendment, he [or she] must say so, not only in federal court, but in state court.”

at 13 366. 14 Nowhere in the Petition does Petitioner allege that he raised his claims in the 15 California Supreme Court. In fact, he specifically indicates he did not seek such review. 16 See Pet. at 5.) If Petitioner has raised his claims in the California Supreme Court, he must 17 so specify. “The burden of proving that a claim has been exhausted lies with the 18 petitioner.” Matthews v. Evatt,

(4th Cir. 1997); see also Breard v. Pruett, 19

(4th Cir. 1998); Lambert v. Blackwell,

(3d Cir. 1997); 20 Oyler v. Allenbrand,

(10th Cir. 1994); Rust v. Zent,

(6th 21 Cir. 1994). 22 Further, the Court cautions Petitioner that, under the Antiterrorism and Effective 23 Death Penalty Act of 1996 (“AEDPA”), a one-year period of limitation shall apply to a 24 petition for a writ of habeas corpus by a person in custody pursuant to the judgment of a 25 State court. The limitation period shall run from the latest of: 26 (A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time 27 for seeking such review; 28 / / / 1 (B) the date on which the impediment to filing an application created by State action in violation of the Constitution or 2 laws of the United States is removed, if the applicant was 3 prevented from filing by such State action;

4 (C) the date on which the constitutional right asserted was 5 initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made 6 retroactively applicable to cases on collateral review; or 7 (D) the date on which the factual predicate of the claim or 8 claims presented could have been discovered through the 9 exercise of due diligence.

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(d)(1)(A)–(D). The statute of limitations does not run while a properly 11 filed state habeas corpus petition is pending.

(d)(2); see also Nino v. 12 Galaza,

(9th Cir. 1999); but cf. Artuz v. Bennett,

(2000) 13 (“[A]n application is ‘properly filed’ when its delivery and acceptance [by the appropriate 14 court officer for placement into the record] are in compliance with the applicable laws and 15 rules governing filings.”). Absent some other basis for tolling, however, the statute of 16 limitations does run while a federal habeas petition is pending. Duncan v. Walker, 533

, 181–82 (2001). 18 FAILURE TO NAME A PROPER RESPONDENT 19 Review of the Petition also reveals that Petitioner has failed to name a proper 20 respondent. On federal habeas, a state prisoner must name the state officer having custody 21 of him as the respondent. Ortiz-Sandoval v. Gomez,

(9th Cir. 1996) 22 (citing Rule 2(a), 28 U.S.C. foll. § 2254). Federal courts lack personal jurisdiction when a 23 habeas petition fails to name a proper respondent. See id. 24 The warden is the typical respondent, although “the rules following section 2254 do 25 not specify the warden.” Id. “[T]he ‘state officer having custody’ may be ‘either the 26 warden of the institution in which the petitioner is incarcerated . . . or the chief officer in 27 charge of state penal institutions.’” Id. (quoting Rule 2(a), 28 U.S.C. foll. § 2254 advisory 28 committee’s note). If “a petitioner is in custody due to the state action he is challenging, 1 ‘[t]he named respondent shall be the state officer who has official custody of the petitioner 2 (for example, the warden of the prison).’” Id. (quoting Rule 2, 28 U.S.C. foll. § 2254 3 advisory committee’s note). 4 A long-standing rule in the Ninth Circuit holds “that a petitioner may not seek [a 5 writ of] habeas corpus against the State under . . . [whose] authority . . . the petitioner is in 6 custody. The actual person who is [the] custodian [of the petitioner] must be the 7 respondent.” Ashley v. Washington,

(9th Cir. 1968). This requirement 8 exists because a writ of habeas corpus acts upon the custodian of the state prisoner, the 9 person who will produce “the body” if directed to do so by the Court. “Both the warden 10 of a California prison and the Director of Corrections for California have the power to 11 produce the prisoner.” Ortiz-Sandoval,

. 12 Here, Petitioner has incorrectly named the “U.S. Marshals” as Respondent. For this 13 Court to entertain the Petition filed in this action, Petitioner must name the warden in 14 charge of the state correctional facility in which Petitioner is presently confined or the 15 Secretary of the California Department of Corrections and Rehabilitation. Brittingham v. 16 United States,

(9th Cir. 1992) (per curiam). 17 CONCLUSION 18 In light of the foregoing, the Court DISMISSES WITHOUT PREJUDICE the 19 Petition due to Petitioner’s failure to satisfy the filing fee requirement, state a cognizable 20 claim, allege exhaustion of state judicial remedies, and name a proper respondent. To have 21 this case reopened, Petitioner must, no later than April 27, 2020, (1) either pay the filing 22 fee or provide adequate proof of his inability to pay, and (2) file a First Amended Petition 23 that cures the pleading deficiencies outlined in this Order. The Clerk of Court SHALL 24 / / / 25 / / / 26 / / / 27 / / / 28 / / / 1 ||}SEND a blank form petition and a blank application to proceed in forma pauperis to 2 || Petitioner along with a copy of this Order. 3 IT IS SO ORDERED. 4 5 ||Dated: March 2, 2020 . tt 6 ja Janis L. Sammartino 7 United States District Judge 8 9 10 1] 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28