1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 CHRISTOPHER TODD HAWKINS, Case No.: 3:23-cv-0267-LL-LR

12 Petitioner, ORDER GRANTING APPLICATION 13 v. TO PROCEED IN FORMA PAUPERIS AND DISMISSING 14 SAN DIEGO COUNTY JAIL, et al., PETITION WITHOUT PREJUDICE 15 Respondents. 16 17 18 On February 8, 2023, Petitioner, an inmate proceeding pro se, filed a Petition for 19 Writ of Habeas Corpus pursuant to

. ECF No. 1. The Court dismissed the 20 Petition because Petitioner failed to satisfy the filing fee requirement. ECF No. 2. In its 21 dismissal order, the Court’s notified Petitioner he must either pay the $5.00 filing fee or 22 provide adequate proof of his inability to pay no later than April 14, 2023. See

Petitioner 23 has now filed a timely application to proceed in forma pauperis (“IFP”). ECF No. 3. 24 MOTION TO PROCEED IFP 25 According to his prison trust account statement, Petitioner has no funds account at 26 the California correctional institution in which he is presently confined. ECF No. 3 at 5. 27 Petitioner cannot afford the $5.00 filing fee. Thus, the Court GRANTS Petitioner’s 28 application to proceed IFP and allows Petitioner to prosecute the above-referenced action 1 without being required to prepay fees or costs and without being required to post security. 2 The Clerk of the Court shall file the Petition for Writ of Habeas Corpus without prepayment 3 of the filing fee. 4 FAILURE TO STATE A COGNIZABLE CLAIM ON FEDERAL HABEAS 5 The Petition must nonetheless be dismissed because Petitioner has failed to state a 6 cognizable claim on federal habeas. Rule 4 of the Rules Governing Section 2254 Cases 7 (“Habeas Rules”) requires the Court to dismiss a petition in the preliminary stage if “it 8 plainly appears from the petition and any attached exhibits that the petitioner is not entitled 9 to relief.” Rule 4, Habeas Rules. 10 Title

(a), sets forth the following scope of review for 11 federal habeas corpus claims: 12 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 13 in custody pursuant to the judgment of a State court only on the ground that 14 he is in custody in violation of the Constitution or laws or treaties of the United States. 15

16

(a); see also Hernandez v. Ylst,

(9th Cir. 1991). Thus, 17 to present a cognizable federal habeas corpus claim under § 2254, a state prisoner must 18 allege both that he is in custody pursuant to a “judgment of a State court,” and that he is in 19 custody in “violation of the Constitution or laws or treaties of the United States.” See 28

(a). Here, Petitioner claims he is “being held against his will” and he “was 21 not at [his] video arraignment.” See ECF No. 1 at 6, 9. Nowhere in his Petition, however, 22 does Petitioner allege he is “in custody in violation of the Constitution or laws or treaties 23 of the United States.”

. 24 Further, the Court notes that Petitioner cannot simply amend his Petition to state a 25 federal habeas claim and then refile the amended petition in this case. He must exhaust 26 state judicial remedies before bringing his claims via federal habeas. State prisoners who 27 wish to challenge their state court conviction must first exhaust state judicial remedies. 28

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

, 133–34 (1987). To exhaust state 1 judicial remedies, a California state prisoner must present the California Supreme Court 2 with a fair opportunity to rule on the merits of every issue raised in his or her federal habeas 3 petition. See

(b), (c); Granberry, 481 U.S. at 133–34. Moreover, to 4 properly exhaust state court judicial remedies a petitioner must allege, in state court, how 5 one or more of his or her federal rights have been violated. The Supreme Court in Duncan 6 v. Henry,

(1995) reasoned: “If state courts are to be given the opportunity to 7 correct alleged violations of prisoners’ federal rights, they must surely be alerted to the fact 8 that the prisoners are asserting claims under the United States Constitution.”

at 365–66 9 (emphasis added). For example, “[i]f a habeas petitioner wishes to claim that an evidentiary 10 ruling at a state court trial denied him the due process of law guaranteed by the Fourteenth 11 Amendment, he must say so, not only in federal court, but in state court.”

(emphasis 12 added). 13 Additionally, the Court cautions Petitioner that under the Antiterrorism and 14 Effective Death Penalty Act of 1996, a one-year period of limitation shall apply to a petition 15 for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. 16 The limitation period shall run from the latest of: 17 (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; 18

19 (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 20 removed, if the applicant was prevented from filing by such State action; 21 (C) the date on which the constitutional right asserted was initially 22 recognized by the Supreme Court, if the right has been newly recognized by 23 the Supreme Court and made retroactively applicable to cases on collateral review; or 24

25 (D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence. 26

27 28

(d)(1)(A)–(D) (West Supp. 2002). 1 The Court also notes that the statute of limitations does not run while a properly filed 2 ||state habeas corpus petition is pending.

(d)(2); see Nino v. Galaza, 183 3 || F.3d 1003, 1006 (9th Cir. 1999); but see Artuz v. Bennett,

(2000) (holding 4 || that “an application is ‘properly filed’ when its delivery and acceptance [by the appropriate 5 || court officer for placement into the record] are in compliance with the applicable laws and 6 ||rules governing filings.”). However, absent some other basis for tolling, the statute of 7 || limitations does run while a federal habeas petition is pending. Duncan v. Walker,

|| 167, 181-82 (2001). 9 CONCLUSION 10 Based on the foregoing, the Court GRANTS Petitioner’s IFP Motion and 11 |}DISMISSES the action without prejudice because Petitioner has failed to state a 12 cognizable federal claim. To have this case reopened, Petitioner must file a First Amended 13 || Petition that cures the pleading deficiencies set forth above no later than June 26, 2023. 14 blank First Amended Petition is included with this Order for Petitioner’s convenience. 15 |} IT ISSO ORDERED. 16 7 Dated: May 23, 2023 NO 18 NF) Honorable Linda Lopez 19 United States District Judge 20 21 22 23 24 25 26 27 28