1 UNITED STATES DISTRICT COURT 2 SOUTHERN DISTRICT OF CALIFORNIA 3 4 Steven Wayne BONILLA, Case No.: 23-cv-0772-AGS-BLM

5 Petitioner, ORDER DISMISSING PETITION 6 v. (ECF 1) WITHOUT PREJUDICE AND CLOSING CASE 7 ALAMEDA COUNTY DISTRICT ATTORNEY, 8 Respondent. 9 10 For four separate reasons, the Court dismisses this petition for a writ of habeas 11 corpus and closes this case. 12 A. Filing Fee 13 Petitioner Steven Bonilla has neither paid the $5.00 filing fee nor applied to proceed 14 in forma pauperis. His petition is therefore subject to dismissal without prejudice. See Rules 15 Governing § 2254 Cases, Rule 3(a), 28 U.S.C. foll. § 2254. 16 B. Jurisdiction and Venue 17 A habeas corpus petition may be filed in the United States District Court for either 18 the federal judicial district within which the petitioner is confined or the one within which 19 he was convicted.

(d). Bonilla is presently confined at California Medical 20 Facility in Vacaville, Solano County, California, within the boundaries of the Eastern 21 District of California. See

(b). And while it is not entirely clear, he appears 22 to be challenging a conviction in Alameda County Superior Court. Bonilla lists that court 23 as his “sentencing or committing court” and says his petition concerns “malicious 24 prosecution without probable cause.” (See ECF 1 at 2.) Alameda County is within the 25 jurisdictional boundaries of the Northern District of California. See

(a). 26 On this record, jurisdiction appears to lie in the Northern and Eastern Districts, but not the 27 Southern District of California. 28 1 C. Proper Respondent 2 In federal habeas cases, a state prisoner must name as respondent the “state officer 3 having custody” of him. Ortiz-Sandoval v. Gomez,

(9th Cir. 1996). This 4 is because a writ of habeas corpus acts upon the custodian of the state prisoner—the person 5 who will produce “the body” if directed to do so by the Court. Otherwise, the reviewing 6 court lacks personal jurisdiction. See

7 “[T]he ‘state officer having custody’ may be ‘either the warden of the institution in 8 which the petitioner is incarcerated . . . or the chief officer in charge of state penal 9 institutions.’”

Bonilla has named “Alameda County District Attorney” as respondent. 10 For the Court to proceed, he must instead name either the warden of the state facility in 11 which he is currently confined or the Secretary of the California Department of Corrections 12 and Rehabilitation. See Brittingham v. United States,

(9th Cir. 1992). 13 D. Exhaustion of State Judicial Remedies 14 Habeas petitioners challenging state-court convictions or the length of their 15 confinement in state prison must first exhaust their state judicial remedies. 28 U.S.C. 16 § 2254(b), (c); Granberry v. Greer,

, 133–34 (1987). A petitioner satisfies this 17 requirement when “(1) he has ‘fairly presented’ his federal claim to the highest state court 18 with jurisdiction to consider it” or “(2) he demonstrates that no state remedy remains 19 available.” Johnson v. Zenon,

(9th Cir. 1996) (citations omitted). Before 20 seeking habeas relief, a California state prisoner must present the California Supreme Court 21 with a fair opportunity to rule on the merits of every issue raised in the federal habeas 22 petition.

(b), (c); Granberry, 481 U.S. at 133–34. The petitioner must also 23 have alleged—in state court—how his federal rights were violated. See Duncan v. Henry, 24

, 365–66 (1995). 25 Bonilla has not alleged exhaustion of his state judicial remedies. He responded 26 “N/A” to questions asking if he had appealed his conviction or if he had sought review 27 from the California Supreme Court. (ECF 1, at 7.) A habeas petition “must” be dismissed 28 if “it plainly appears from the face of the petition and any attached exhibits that the 1 || petitioner is not entitled to relief in the district court... .” Rules Governing § 2254 Cases, 2 ||Rule 4, 28 U.S.C. foll. § 2254. 3 CONCLUSION AND ORDER 4 For the foregoing reasons, the petition is DISMISSED without prejudice. The Clerk 5 ||is directed to close this case. 6 If Bonilla wishes to proceed in this District, he must submit, no later than July 7, 7 ||2023, BOTH (1) a completed First Amended Petition form that cures the pleading 8 || deficiencies outlined in this Order and (2) either the $5.00 filing fee or adequate proof of 9 || his inability to pay the fee. The Clerk is directed to send Bonilla a blank Southern District 10 || of California amended § 2254 habeas petition form and in forma pauperis application along 11 || with a copy of this Order. 12 But if Bonilla is indeed confined outside the Southern District of California and is 13 || attempting to challenge a state conviction entered in Alameda County, he could only seek 14 || federal habeas relief from a U.S. district court that covers Alameda County or the county 15 which he is confined. 16 The Court cautions Bonilla that a one-year period of limitation applies to a federal 17 || petition for a writ of habeas corpus. See

(d). This statute of limitations 18 || does not run while a properly filed state habeas corpus petition is pending, but generally it 19 || does run while a federal habeas petition is pending. See

(d)(2); Duncan v. 20 || Walker,

(2001). 21 || Dated: May 11, 2023 22 2 : f 3 Andrew G. Schopler United States District Judge 24 25 26 27 28