1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 JON GUERRERO, Case No.: 20cv1114 CAB (KSC)

12 Petitioner, ORDER: (1) GRANTING MOTION 13 v. TO PROCEED IN FORMA PAUPERIS; and (2) DISMISSING 14 JANEAN WALLACE, CASE WITHOUT PREJUDICE AND 15 Respondent. WITH LEAVE TO AMEND 16 17 Petitioner, proceeding pro se, has filed a Petition for Writ of Habeas Corpus 18 pursuant to

. 19 MOTION TO PROCEED IN FORMA PAUPERIS 20 Petitioner has filed a request to proceed in forma pauperis which reflects that he 21 has no funds in his trust account at the facility in which he is presently confined. 22 Petitioner cannot afford the $5.00 filing fee. Thus, the Court GRANTS Petitioner’s 23 application to proceed in forma pauperis. The Clerk of the Court shall file the Petition 24 for Writ of Habeas Corpus without prepayment of the filing fee. 25 FAILURE TO NAME A PROPER RESPONDENT 26 Review of the Petition reveals that Petitioner has failed to name a proper 27 respondent. On federal habeas, a state prisoner must name the state officer having 28 custody of him as the respondent. Ortiz-Sandoval v. Gomez,

(9th Cir. 1 1996) (citing Rule 2(a), 28 U.S.C. foll. § 2254). Federal courts lack personal jurisdiction 2 when a habeas petition fails to name a proper respondent. See id. 3 The warden is the typical respondent. However, “the rules following section 2254 4 do not specify the warden.” Id. “[T]he ‘state officer having custody’ may be ‘either the 5 warden of the institution in which the petitioner is incarcerated . . . or the chief officer in 6 charge of state penal institutions.’” Id. (quoting Rule 2(a), 28 U.S.C. foll. § 2254 7 advisory committee’s note). If “a petitioner is in custody due to the state action he is 8 challenging, ‘[t]he named respondent shall be the state officer who has official custody of 9 the petitioner (for example, the warden of the prison).’” Id. (quoting Rule 2, 28 U.S.C. 10 foll. § 2254 advisory committee’s note). 11 A long standing rule in the Ninth Circuit holds “that a petitioner may not seek [a 12 writ of] habeas corpus against the State under . . . [whose] authority . . . the petitioner is 13 in custody. The actual person who is [the] custodian [of the petitioner] must be the 14 respondent.” Ashley v. Washington,

(9th Cir. 1968). This requirement 15 exists because a writ of habeas corpus acts upon the custodian of the state prisoner, the 16 person who will produce “the body” if directed to do so by the Court. “Both the warden 17 of a California prison and the Director of Corrections for California have the power to 18 produce the prisoner.” Ortiz-Sandoval,

. 19 Here, Petitioner has incorrectly named “Janean Wallace,” as Respondent. In order 20 for this Court to entertain the Petition filed in this action, Petitioner must name the 21 warden in charge of the state correctional facility in which Petitioner is presently 22 confined or the Secretary of the California Department of Corrections and Rehabilitation. 23 Brittingham v. United States,

(9th Cir. 1992) (per curiam). 24 FAILURE TO STATE A COGNIZABLE FEDERAL CLAIM 25 In accordance with Rule 4 of the rules governing § 2254 cases, Petitioner has failed 26 to allege that his state court conviction or sentence violates the Constitution of the United 27 States. 28 / / / 1 Title

(a), sets forth the following scope of review 2 for federal habeas corpus claims: 3 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 4 person in custody pursuant to the judgment of a State court only on the 5 ground that he is in custody in violation of the Constitution or laws or treaties of the United States. 6

7

(a) (emphasis added). See Hernandez v. Ylst,

(9th 8 Cir. 1991); Mannhalt v. Reed,

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

(9th Cir. 1986). Thus, to present a cognizable federal 10 habeas corpus claim under § 2254, a state prisoner must allege both that he is in custody 11 pursuant to a “judgment of a State court,” and that he is in custody in “violation of the 12 Constitution or laws or treaties of the United States.” See

(a). 13 Here, Petitioner states that he wants to prosecute the state court judge, deputy 14 district attorney and deputy public defender in his case, alleges that he is the victim of 15 “false light invasion of privacy,” and alleges that he has been humiliated by the 16 introduction of reputation and character evidence. (Pet., ECF No. 1 at 6-9.) In no way 17 does he allege that his conviction was obtained in violation of the United States 18 Constitution. 19 FAILURE TO ALLEGE EXHAUSTION OF STATE JUDICIAL REMEDIES 20 Further, habeas petitioners who wish to challenge either their state court conviction 21 or the length of their confinement in state prison, must first exhaust state judicial 22 remedies.

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

(1987). 23 To exhaust state judicial remedies, a California state prisoner must present the California 24 Supreme Court with a fair opportunity to rule on the merits of every issue raised in his or 25 her federal habeas petition.

(b), (c); Granberry,

. 26 Moreover, to properly exhaust state court remedies a petitioner must allege, in state court, 27 how one or more of his or her federal rights have been violated. The Supreme Court in 28 Duncan v. Henry,

(1995) reasoned: “If state courts are to be given the 1 opportunity to correct alleged violations of prisoners’ federal rights, they must surely be 2 alerted to the fact that the prisoners are asserting claims under the United States 3 Constitution.”

(emphasis added). For example, “[i]f a habeas petitioner 4 wishes to claim that an evidentiary ruling at a state court trial denied him [or her] the due 5 process of law guaranteed by the Fourteenth Amendment, he [or she] must say so, not 6 only in federal court, but in state court.”

(emphasis added). 7 Nowhere on the Petition does Petitioner allege that he raised his claims in the 8 California Supreme Court. In fact, he specifically indicates he did not seek such review. 9 (See Pet., ECF No. 1 at 6-9.) If Petitioner has raised his claims in the California Supreme 10 Court he must so specify. 11 Further, the Court cautions Petitioner that under the Antiterrorism and Effective 12 Death Penalty Act of 1996 (AEDPA) a one-year period of limitation shall apply to a 13 petition for a writ of habeas corpus by a person in custody pursuant to the judgment of a 14 State court. The limitation period shall run from the latest of: 15 (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; 16

17 (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 18 removed, if the applicant was prevented from filing by such State action; 19 (C) the date on which the constitutional right asserted was initially 20 recognized by the Supreme Court, if the right has been newly recognized by 21 the Supreme Court and made retroactively applicable to cases on collateral review; or 22

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

25

(d)(1)(A)-(D) (West 2006). 26 The statute of limitations does not run while a properly filed state habeas corpus 27 petition is pending.

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

, 1006 28 (9th Cir. 1999). But see Artuz v. Bennett,

(2000) (holding that “an 1 || application is “properly filed’ when its delivery and acceptance [by the appropriate court 2 || officer for placement into the record] are in compliance with the applicable laws and 3 ||rules governing filings.”). However, absent some other basis for tolling, the statute of 4 || limitations does run while a federal habeas petition is pending. Duncan v. Walker, 533 5 167, 181-82 (2001). 6 Rule 4 of the Rules Governing Section 2254 Cases provides for summary dismissal 7 || of a habeas petition “[i]f it plainly appears from the face of the petition and any exhibits 8 || annexed to it that the petitioner is not entitled to relief in the district court...” Rule 4, 28 9 ||U.S.C. foll. § 2254. Here, it appears plain from the Petition that Petitioner is not 10 || presently entitled to federal habeas relief because he has not alleged exhaustion of state 11 court remedies. CONCLUSION 13 For the foregoing reasons, the Petitioner’s request to proceed in forma pauperis is 14 |} GRANTED and the Petition is DISMISSED without prejudice and with leave to amend. 15 || If Petitioner wishes to proceed with this case, he must, no later than August 28, 2020, file 16 ||a First Amended Petition that cures the pleading deficiencies outlined in this Order. The 17 || Clerk of Court is directed to mail Petitioner a blank Petition for Writ of Habeas Corpus 18 || pursuant to

form together with a copy of this Order. 19 IT IS SO ORDERED. 20 || Dated: June 23, 2020 € ZL 21 Hon. Cathy Ann Bencivengo 22 United States District Judge 23 24 25 26 27 28