1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 WANI JUMA KOSE, Case No.: 3:21-cv-0439-BAS-MDD

12 Petitioner, ORDER: (1) GRANTING 13 v. APPLICATION TO PROCEED IN FORMA PAUPERIS AND (2) 14 CHRISTIAN PFEIFFER, Warden, DISMISSING CASE WITHOUT 15 Respondent. PREJUDICE AND WITH LEAVE TO AMEND 16 17 18 Petitioner, a state prisoner proceeding pro se, has not paid the $5.00 filing fee and 19 has filed a Petition for Writ of Habeas Corpus pursuant to

, together with 20 a request to proceed in forma pauperis pursuant to

(a). 21 22 APPLICATION TO PROCEED IN FORMA PAUPERIS 23 According to the signed Prison Certificate submitted along with Petitioner’s In 24 Forma Pauperis Application, Petitioner has no funds on account at the California 25 correctional institution in which he is presently confined. (See ECF No. 2 at 4.) Petitioner 26 cannot afford the $5.00 filing fee. Thus, the Court GRANTS Petitioner’s application to 27 proceed in forma pauperis. The Clerk of the Court shall file the Petition for Writ of Habeas 28 Corpus without prepayment of the filing fee. 1 FAIULURE TO ALLEGE EXHAUSTION OF STATE JUDICIAL REMEDIES 2 The Petition must be dismissed, however, because Petitioner has failed to allege 3 exhaustion of state court remedies. Habeas petitioners who wish to challenge either their 4 state court conviction or the length of their confinement in state prison, must first exhaust 5 state judicial remedies.

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

, 133– 6 34 (1987). To exhaust state judicial remedies, a California state prisoner must present the 7 California Supreme Court with a fair opportunity to rule on the merits of every issue raised 8 in his or her federal habeas petition.

(b), (c); Granberry, 481 U.S. at 133– 9 34. Moreover, to properly exhaust state court remedies a petitioner must allege, in state 10 court, how one or more of his or her federal rights have been violated. The Supreme Court 11 in Duncan v. Henry,

(1995) reasoned: “If state courts are to be given the 12 opportunity to correct alleged violations of prisoners’ federal rights, they must surely be 13 alerted to the fact that the prisoners are asserting claims under the United States 14 Constitution.”

at 365–66 (emphasis added). For example, “[i]f a habeas petitioner 15 wishes to claim that an evidentiary ruling at a state court trial denied him [or her] the due 16 process of law guaranteed by the Fourteenth Amendment, he [or she] must say so, not only 17 in federal court, but in state court.”

(emphasis added). 18 Nowhere on the Petition does Petitioner allege that he raised his claims in the 19 California Supreme Court. In fact, he specifically indicates that he did not seek such 20 review. (See Pet., ECF No. 1 at 6.) If Petitioner has raised his claims in the California 21 Supreme Court he must so specify. “The burden of proving that a claim has been exhausted 22 lies with the petitioner.” Matthews v. Evatt,

(4th Cir. 1997). 23 Further, the Court cautions Petitioner that under the Antiterrorism and Effective 24 Death Penalty Act of 1996 (AEDPA) a one-year period of limitation shall apply to a 25 petition for a writ of habeas corpus by a person in custody pursuant to the judgment of a 26 State court. The limitation period shall run from the latest of: 27 (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 1 (B) the date on which the impediment to filing an application created by State 2 action in violation of the Constitution or laws of the United States is removed, 3 if the applicant was prevented from filing by such State action;

4 (C) the date on which the constitutional right asserted was initially recognized 5 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 6

7 (D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence. 8

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(d)(1)(A)–(D) (West 2006). 10 The statute of limitations does not run while a properly filed state habeas corpus 11 petition is pending.

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

(9th 12 Cir. 1999). But see Artuz v. Bennett,

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

, 181–82 (2001). 17 Rule 4 of the Rules Governing Section 2254 Cases provides for summary dismissal 18 of a habeas petition “[i]f it plainly appears from the face of the petition and any exhibits 19 annexed to it that the petitioner is not entitled to relief in the district court . . .” Rule 4, 28

. Here, it appears plain from the Petition that Petitioner is not presently 21 entitled to federal habeas relief because he has not alleged exhaustion of state court 22 remedies. 23 // 24 // 25 // 26 // 27 // 28 // 1 CONCLUSION 2 Accordingly, the Court GRANTS the request to proceed in forma pauperis and 3 DISMISSES the case without prejudice. To have the case reopened, Petitioner must, on 4 or before June 2, 2021, file a First Amended Petition cures the pleading deficiency 5 outlined in this Order. For Petitioner’s convenience, the Clerk of Court shall attach to 6 this Order a blank Amended Petition form. 7 IT IS SO ORDERED. 8 Dated: March 30, 2021 9 Cynthia Bashant United States District Judge 10

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