1 UNITED STATES DISTRICT COURT 2 SOUTHERN DISTRICT OF CALIFORNIA 3 Eric R. CRIPE, Case No.: 24-cv-1697-AGS-LR

4 Petitioner, ORDER (1) GRANTING MOTION 5 v. TO PROCEED IN FORMA PAUPERIS AND (2) DISMISSING 6 Joseph TUGGLE, et al., PETITION WITHOUT PREJUDICE 7 Respondents. 8 9 Petitioner Eric R. Cripe, a state prisoner, seeks a writ of habeas corpus and 10 permission to proceed without paying the filing fee. While Cripe qualifies to skip the filing 11 fee, his case must be dismissed. 12 MOTION TO PROCEED IN FORMA PAUPERIS 13 Cripe has $0.56 in his prisoner trust account and thus cannot afford the $5.00 filing 14 fee. (See ECF 2, at 7.) So, the Court GRANTS Cripe’s motion and allows him to prosecute 15 this action without prepaying fees or costs and without posting security. 16 FAILURE TO STATE A COGNIZABLE FEDERAL CLAIM 17 The petition, however, must be dismissed because “it plainly appears from the face 18 of the petition and any attached exhibits that the petitioner is not entitled to relief in the 19 district court . . . .” R. 4, Rules Governing Section 2254 Cases. To present a cognizable 20 federal habeas corpus claim, a state prisoner must allege both that he is in custody pursuant 21 to a “judgment of a State court,” and that he is in custody in “violation of the Constitution 22 or laws or treaties of the United States.” See

(a). It’s this last requirement 23 that trips up Cripe’s claim. 24 In the sole claim in his petition, Cripe alleges that the trial court erred in admitting 25 evidence in his case under California Evidence Code § 1101(b)(1) and asserts the evidence 26 should have been excluded under California Penal Code § 352. (See ECF 1, at 6, 9-14.) 27 But Cripe but does not assert or allege any federal constitutional violation arising from the 28 asserted state-law error. (See id.) An argument that “evidence was incorrectly admitted 1 pursuant to California law” is “no part of a federal court’s habeas review of a state 2 conviction” since “habeas corpus relief does not lie for errors of state law.” Estelle v. 3 McGuire,

(1991). Thus, Cripe doesn’t offer a cognizable claim that he is 4 “in custody in violation of the Constitution or laws or treaties of the United States.” 5

. So his petition must be dismissed. 6 Further, the Court notes that Cripe cannot simply amend his petition to state a federal 7 habeas claim and then refile, unless he also alleges that he has exhausted state judicial 8 remedies as to that federal claim. Habeas petitioners who wish to challenge either their 9 state court conviction or the length of their confinement in state prison, must first exhaust 10 state judicial remedies.

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

, 133- 11 34 (1987). To exhaust state judicial remedies, California state prisoners must present the 12 California Supreme Court with a fair opportunity to rule on the merits of every issue raised 13 in their federal habeas petition.

(b), (c); Granberry, 481 U.S. at 133–34. 14 “A petitioner has satisfied the exhaustion requirement if: (1) he has ‘fairly presented’ his 15 federal claim to the highest state court with jurisdiction to consider it, or (2) he 16 demonstrates that no state remedy remains available.” Johnson v. Zenon,

, 829 17 (9th Cir. 1996) (citations omitted). Moreover, to properly exhaust state court remedies a 18 petitioner must allege, in state court, how one or more of his or her federal rights have been 19 violated. 20 The Court additionally cautions Cripe that under the Antiterrorism and Effective 21 Death Penalty Act of 1996 (AEDPA) a one-year period of limitation shall apply to a 22 petition for a writ of habeas corpus by a person in custody pursuant to the judgment of a 23 State court. The limitation period shall run from the latest of: 24 (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; 25

26 (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 removed, 27 if the applicant was prevented from filing by such State action; 28 1 (C) the date on which the constitutional right asserted was initially recognized 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 3 A (D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence. 5 6

(d)(1)(A)-(D). The statute of limitations is tolled while a properly filed 7 state habeas corpus petition is pending.

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

(9th Cir. 1999). However, absent some other basis for tolling, the 9 statute of limitations continues to run while a federal habeas petition is pending. Duncan 10 |”: Walker,

, 181-82 (2001). 1 CONCLUSION For the reasons discussed above, the Court GRANTS Cripe’s motion to proceed in B forma pauperis and DISMISSES the petition without prejudice. If Cripe wishes to proceed 14 with this habeas action, he must, no later than November 26, 2024, file an amended petition 15 that cures the identified deficiencies. The Clerk of Court is directed to mail Cripe a blank 16 Amended Petition for Writ of Habeas Corpus pursuant to 28 U.S.C § 2254 together with a 17 || COPY of this Order. 18 Dated: September 30, 2024 19 f—_— 0 Hon. Andrew G. Schopler United States District Judge 21 22 23 24 25 26 27 28