1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 WAYNE ELIJAH JONES, Case No.: 24cv0535 CAB (MSB)

12 Petitioner, ORDER DISMISSING CASE 13 v. WITHOUT PREJUDICE 14 SAVANNAH R. MONTANEZ, et al., 15 Respondents. 16 17 Wayne Elijah Jones (“Petitioner”), a state prisoner proceeding pro se, has filed a 18 Petition for a Writ of Habeas Corpus pursuant to

. (ECF No. 1.) For the 19 reasons discussed below, the Petition is dismissed without prejudice. 20 FAILURE TO SATISFY FILING FEE REQUIREMENT 21 Petitioner has failed to pay the $5.00 filing fee and has failed to move to proceed in 22 forma pauperis. The Court cannot proceed until Petitioner has either paid the $5.00 filing 23 fee or qualified to proceed in forma pauperis. See Rules Governing § 2254 Cases, Rule 24 3(a), 28 U.S.C. foll. § 2254. 25 FAILURE TO NAME A PROPER RESPONDENT 26 In addition, Petitioner has failed to name a proper respondent. On federal habeas, a 27 state prisoner must name the state officer having custody of him as the respondent. Ortiz- 28 Sandoval v. Gomez,

(9th Cir. 1996), citing Rules Governing § 2254 Cases, 1 Rule 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 Rules Governing § 2254 Cases, Rule 2(a), 7 28 U.S.C. foll. § 2254 advisory committee’s note. Here, Petitioner has incorrectly named 8 “Savannah R. Montanez” and “Appellate Defenders, Inc.” as Respondents. (ECF No. 1 at 9 1.) In order for this Court to entertain the Petition, Petitioner must name the Warden in 10 charge of the state correctional facility in which he is presently confined or the Director of 11 the California Department of Corrections and Rehabilitation. Brittingham v. United States, 12

(9th Cir. 1992) (per curiam). 13 FAILURE TO STATE A COGNIZABLE FEDERAL CLAIM 14 In accordance with Rule 4 of the Rules Governing § 2254 cases, Petitioner has also 15 failed to allege that his state court conviction or sentence violates the Constitution of the 16 United States or laws or treaties of the United States. 17 Title

(a), sets forth the following scope of review for 18 federal habeas corpus claims: 19 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 in 20 custody pursuant to the judgment of a State court only on the ground that he 21 is in custody in violation of the Constitution or laws or treaties of the United States. 22

23

(a) (emphasis added). See Hernandez v. Ylst,

(9th Cir. 24 1991); Mannhalt v. Reed,

(9th Cir. 1988); Kealohapauole v. Shimoda, 25

(9th Cir. 1986). Thus, to present a cognizable federal habeas 26 corpus claim under § 2254, a state prisoner must allege both that he is in custody pursuant 27 to a “judgment of a State court,” and that he is in custody in “violation of the Constitution 28 or laws or treaties of the United States.” See

(a). 1 Here, Petitioner fails to allege he is in custody in “violation of the Constitution or 2 laws or treaties of the United States.” See

(a). Petitioner indicates that 3 the instant Petition concerns “a conviction,” “a sentence,” “jail or prison conditions,” 4 “parole,” “credits”, and “prison discipline,” as well as “U.S. Constitutional Rights,” 5 “Privacy Federal Right,” “Civil Rights 1983,” and “Human Rights.” (See ECF No. 1 at 3.) 6 However, Petitioner does not appear to clearly articulate any grounds for federal habeas 7 relief in the Petition. Instead, on the space provided on the habeas form for the first ground 8 for relief, Petitioner appears to simply recite or outline general information and case law 9 concerning “Discretionary Rulings.” (See ECF No. 1 at 5.) Meanwhile, on the space 10 provided on the habeas form for the second ground for relief, Petitioner appears to continue 11 to outline general information and case law concerning various discretionary trial court 12 rulings on matters including but not limited to motions for a new trial, mistrial, discovery, 13 and challenges to jurors; he also requests copies of court records and records from defense 14 and prosecutorial agencies, which he indicates will assist him in other habeas corpus and 15 civil rights actions. (See

.) Upon review, Petitioner’s claims are not cognizable 16 on habeas because it is unclear how they challenge the constitutional validity or duration 17 of his confinement.1 See

(a). 18 FAILURE TO ALLEGE EXHAUSTION OF STATE JUDICIAL REMEDIES 19 Habeas petitioners who wish to challenge either their state court conviction or the 20 length of their confinement in state prison, must first exhaust state judicial remedies. 28

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

(1987). To exhaust state 22 judicial remedies, a California state prisoner must present the California Supreme Court 23 with a fair opportunity to rule on the merits of every issue raised in his or her federal habeas 24

25 1 On the initial page of the habeas form, Petitioner also states: “Attorney does not 26 just walk away from their duty to fight for someone’s rights” and includes a request for 27 “aggravated” monetary damages. (Id. at 1.) This request also falls outside the scope of federal habeas corpus. See e.g. Nelson v. Campbell,

(2004) (noting that 28 1 petition.

(b), (c); Granberry,

. Ordinarily, to satisfy 2 the exhaustion requirement, a petitioner “‘must fairly present[]’ his federal claim to the 3 highest state court with jurisdiction to consider it, or . . . demonstrate[] that no state remedy 4 remains available.” Johnson v. Zenon,

(9th Cir. 1996) (citations omitted). 5 Moreover, to properly exhaust state court remedies a petitioner must allege, in state court, 6 how one or more of his or her federal rights have been violated. For example, “[i]f a habeas 7 petitioner wishes to claim that an evidentiary ruling at a state court trial denied him [or her] 8 the due process of law guaranteed by the Fourteenth Amendment, he [or she] must say so, 9 not only in federal court, but in state court.” Duncan v. Henry,

(1995) 10 (emphasis added). 11 Petitioner does not allege that he raised the claims he wishes to present here in the 12 California Supreme Court. (See generally ECF No. 1.) Petitioner indicates he has an 13 appeal and other petitions pending in various courts (see id. at 9, 11), but does not indicate 14 that any of those appeals and/or petitions are before the California Supreme Court, much 15 less if those appeals and/or petitions contain the claims he wishes to present in this Court. 16 If Petitioner has raised his claims in the California Supreme Court, he must so specify. 17 Further, the Court cautions Petitioner that under the Antiterrorism and Effective 18 Death Penalty Act of 1996 (AEDPA) a one-year period of limitation shall apply to a 19 petition for a writ of habeas corpus by a person in custody pursuant to the judgment of a 20 State court. The limitation period shall run from the latest of: 21 (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; 22

23 (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, 24 if the applicant was prevented from filing by such State action; 25 (C) the date on which the constitutional right asserted was initially recognized 26 by the Supreme Court, if the right has been newly recognized by the Supreme 27 Court and made retroactively applicable to cases on collateral review; or 28 1 (D) the date on which the factual predicate of the claim or claims presented 7 could have been discovered through the exercise of due diligence.

(d)(1)(A)-(D). 4 The statute of limitations does not run while a properly filed state habeas corpus 5 || petition is pending.

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

(9th 6 || Cir. 1999), but see Artuz v. Bennett,

(2000) (holding that “an application is 7 ‘properly filed’ when its delivery and acceptance [by the appropriate court officer for 8 || placement into the record] are in compliance with the applicable laws and rules governing 9 || filings.”). However, absent some other basis for tolling, the statute of limitations does run 10 || while a federal habeas petition is pending. Duncan v. Walker,

(2001). 11 Rule 4 of the Rules Governing Section 2254 Cases provides for summary dismissal 12 || of a habeas petition “[i]f it plainly appears from the face of the petition and any attached 13 || exhibits that the petitioner is not entitled to relief in the district court...” Rule 4, 28 U.S.C. 14 foll. § 2254. Here, it appears plain from the Petition that Petitioner is not presently entitled 15 || to federal habeas relief because he has not alleged exhaustion of state court remedies. 16 CONCLUSION AND ORDER 17 For the foregoing reasons, the Petition is DISMISSED without prejudice. If 18 || Petitioner wishes to reopen and proceed with this habeas case, Petitioner must submit, no 19 than June 4, 2024, a copy of this Order along with BOTH: (1) a completed First 20 || Amended Petition form that cures the pleading deficiencies outlined in the instant Order 21 (2) either the $5.00 fee or adequate proof of Petitioner’s inability to pay the fee. The 22 Clerk of Court is directed to send Petitioner a blank In Forma Pauperis Application and a 23 || blank

Amended Habeas Petition form together with a copy of this Order. 24 ISSO ORDERED. 25 Dated: April 4, 2024 € Z 26 Hon. Cathy Ann Bencivengo 27 United States District Judge 28