1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 SOUTHERN DISTRICT OF CALIFORNIA 8 9 VERNON ROBERT WALKER, Case No.: 3:23-cv-01604-BTM-MSB

10 Petitioner, ORDER DENYING IN FORMA 11 v. PAUPERIS APPLICATION AND DISMISSING CASE WITHOUT 12 PEOPLE OF THE STATE OF PREJUDICE AND WITH LEAVE TO CALIFORNIA, 13 AMEND Respondents. 14 15 Petitioner, a California state prisoner proceeding pro se, has filed a Petition for a 16 Writ of Habeas Corpus pursuant to

. Pet., ECF No. 1. He has also 17 submitted a Motion to Proceed in Forma Pauperis (“IFP”) and an Inmate Trust Account 18 Statement. ECF No. 2. 19 MOTION TO PROCEED IN FORMA PAUPERIS 20 The request to proceed in forma pauperis reflects a $176.78 balance in Petitioner’s 21 prison trust account.

at 7–8. The filing fee associated with this type of action is $5.00. 22 See

(a). Because it appears Petitioner can pay the requisite filing fee, the 23 Court DENIES the request to proceed in forma pauperis. 24 FAILURE TO NAME A PROPER RESPONDENT 25 Review of the Petition reveals that Petitioner has failed to name a proper respondent. 26 On federal habeas, a state prisoner must name the state officer having custody of him as 27 the respondent. Ortiz-Sandoval v. Gomez,

(9th Cir. 1996) (citing Rule 28 1 2(a), 28 U.S.C. foll. § 2254). Federal courts lack personal jurisdiction when a habeas 2 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 advisory 7 committee’s note). If “a petitioner is in custody due to the state action he is challenging, 8 ‘[t]he named respondent shall be the state officer who has official custody of the petitioner 9 (for example, the warden of the prison).’” Id. (quoting Rule 2, 28 U.S.C. foll. § 2254 10 advisory committee’s note). 11 Here, Petitioner has not named a Respondent on his Petition, but has named “The 12 People of the State of California” on his IFP motion. See ECF Nos 1–2. In order 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 FAILURE TO ALLEGE EXHAUSTION OF STATE JUDICIAL REMEDIES 18 Habeas petitioners who wish to challenge either their state court conviction or the 19 length of their confinement in state prison must first exhaust state judicial remedies. 28

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

(1987). To exhaust state 21 judicial remedies, a California state prisoner must present the California Supreme Court 22 with a fair opportunity to rule on the merits of every issue raised in his or her federal habeas 23 petition.

(b), (c); Granberry, 481 U.S. at 133–34. Moreover, to properly 24 exhaust state court remedies a petitioner must allege, in state court, how one or more of his 25 or her federal rights have been violated. Duncan v. Henry,

, 365–66 (1995). 26 For example, “[i]f a habeas petitioner wishes to claim that an evidentiary ruling at a state 27 court trial denied him [or her] the due process of law guaranteed by the Fourteenth 28 Amendment, he [or she] must say so, not only in federal court, but in state court.”

at 1 366. Here, Petitioner has not indicated he raised his claims in the California Supreme Court, 2 and therefore his Petition is subject to dismissal. 3 Further, the Court cautions Petitioner that under the Antiterrorism and Effective 4 Death Penalty Act of 1996 (AEDPA) a one-year period of limitation shall apply to a 5 petition for a writ of habeas corpus by a person in custody pursuant to the judgment of a 6 State court. The limitation period shall run from the latest of: 7 (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; 8

9 (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 10 removed, if the applicant was prevented from filing by such State action; 11 (C) the date on which the constitutional right asserted was initially 12 recognized by the Supreme Court, if the right has been newly recognized by 13 the Supreme Court and made retroactively applicable to cases on collateral review; or 14

15 (D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence. 16

17

(d)(1)(A)-(D) (West 2006). 18 The statute of limitations does not run while a properly filed state habeas corpus 19 petition is pending.

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

(9th 20 Cir. 1999). But see Artuz v. Bennett,

(2000) (holding that “an application is 21 ‘properly filed’ when its delivery and acceptance [by the appropriate court officer for 22 placement into the record] are in compliance with the applicable laws and rules governing 23 filings.”). However, absent some other basis for tolling, the statute of limitations does run 24 while a federal habeas petition is pending. Duncan v. Walker,

(2001). 25 VENUE 26 A petition for writ of habeas corpus may be filed in the United States District Court 27 of either the judicial district in which the petitioner was convicted and sentenced or in the 28 district where he is presently confined. See

(d); Braden v. 30th Judicial 1 || Circuit Court,

(1973). Petitioner does not say where his state court 2 ||conviction occurred, and according to his IFP motion and trust account statement, he is 3 ||presently confined at Pleasant Valley State Prison, which is located in Fresno County, 4 || which is within the jurisdictional boundaries of the United States District Court for the 5 || Eastern District of California. See

(b). Petitioner is advised that if he chooses 6 ||to file an Amended Petition, he should specify where his state court conviction took place. 7 FAILURE TO SIGN PETITION 8 Rule 2(c) of the Rules Governing Section 2254 Cases provides that “[t]he petition 9 || shall be typewritten or legibly handwritten and shall be signed under penalty of perjury by 10 || the petitioner.” Rule 2(c), 28 U.S.C. foll. § 2254. Petitioner has not signed the Petition. 1] CONCLUSION 12 For the foregoing reasons, the Court DENIES Petitioner’s IFP motion and 13 || DISMISSES this case without prejudice and with leave to amend. To proceed with his 14 || case, Petitioner must, no later than November 8, 2023: (1) pay the $5.00 filing fee or submit 15 || adequate proof of his inability to pay the fee; AND (2) file a First Amended Petition that 16 |/cures the pleading deficiencies outlined in this Order. The Clerk of Court will mail 17 || Petitioner a blank Motion to Proceed in Forma Pauperis and a blank First Amended 18 || Petition form together with a copy of this Order. 19 IT IS SO ORDERED. 20 || Dated: September 11, 2023 il □ 21 Auny Til Yueh Honormble Barry Ted Moskow!1 22 United States District Judge 23 24 25 26 27 28