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WASHINGTON v. KOLENDER

United States District Court, S.D. California


October 3, 2005.

ANDRE MIGUEL WASHINGTON, Petitioner,
v.
WILLIAM B. KOLENDER, Sheriff, et al., Respondents.

The opinion of the court was delivered by: BARRY MOSKOWITZ, District Judge

ORDER:

(1) GRANTING REQUEST TO PROCEED IN FORMA PAUPERIS; AND,
(2) DISMISSING CASE WITHOUT PREJUDICE AND WITH LEAVE TO AMEND
Petitioner, a person detained at the San Diego County Jail and proceeding pro se, has filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254, challenging his San Diego County Superior Court conviction. Petitioner has also filed a request to proceed in forma pauperis.

REQUEST TO PROCEED IN FORMA PAUPERIS

  Petitioner has no funds on account at the institution in which he is presently confined. Petitioner cannot afford the $5.00 filing fee. Thus, the Court GRANTS Petitioner's application to proceed in forma pauperis.

  FAILURE TO ALLEGE EXHAUSTION OF STATE JUDICIAL REMEDIES

  However, the Petition must be dismissed because Petitioner has failed to allege exhaustion of state judicial remedies as to all claims. Habeas petitioners who wish to challenge either their state court conviction or the length of their confinement in state prison, must first exhaust state judicial remedies. 28 U.S.C. § 2254(b), (c); Granberry v. Greer, 481 U.S. 129, 133-34 (1987). To exhaust state judicial remedies, a California state prisoner must present the California Supreme Court with a fair opportunity to rule on the merits of every issue raised in his or her federal habeas petition. 28 U.S.C. § 2254(b), (c); Granberry, 481 U.S. at 133-34. Moreover, to properly exhaust state court remedies a petitioner must allege, in state court, how one or more of his or her federal rights have been violated. The Supreme Court in Duncan v. Henry, 513 U.S. 364 (1995) reasoned: "If state courts are to be given the opportunity to correct alleged violations of prisoners' federal rights, they must surely be alerted to the fact that the prisoners are asserting claims under the United States Constitution." Id. at 365-66 (emphasis added). For example, "[i]f a habeas petitioner wishes to claim that an evidentiary ruling at a state court trial denied him [or her] the due process of law guaranteed by the Fourteenth Amendment, he [or she] must say so, not only in federal court, but in state court." Id. at 366 (emphasis added).

  Petitioner indicates that he has presented various claims to the state appellate court (see Pet. at 3-4), but nowhere in the Petition does he state that his claims have been presented to the state supreme court. If Petitioner has raised his federal claims in the California Supreme Court he must so specify. The burden of pleading that a claim has been exhausted lies with Petitioner. Cartwright v. Cupp, 650 F.2d 1103, 1104 (9th Cir. 1981). Rule 4 of the Rules Governing Section 2254 Cases provides for summary dismissal of a habeas petition "[i]f it plainly appears from the face of the petition and any attached exhibits that the petitioner is not entitled to relief in the district court . . ." Rule 4, 28 U.S.C. foll. § 2254. Here, it appears plain from the Petition that Petitioner is not presently entitled to federal habeas relief because he has not alleged exhaustion of state court remedies with respect to any federal claim presented in the Petition.

  Further, the Court cautions Petitioner that under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) a one-year period of limitation shall apply to a petition for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of:

(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;
(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, if the applicant was prevented from filing by such State action;
(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
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.
28 U.S.C.A. § 2244(d)(1)(A)-(D) (West Supp. 2005).

  The statute of limitations does not run while a properly filed state habeas corpus petition is pending. 28 U.S.C. § 2244(d)(2); see Nino v. Galaza, 183 F.3d 1003, 1006 (9th Cir. 1999), cert. denied, 529 U.S. 1104 (2000). But see Artuz v. Bennett, 531 U.S. 4, 8 (2000) (holding that "an application is `properly filed' when its delivery and acceptance [by the appropriate court officer for placement into the record] are in compliance with the applicable laws and rules governing filings."). However, unless there is some other basis for tolling, the statute of limitations does run while a federal habeas petition is pending. Duncan v. Walker, 533 U.S. 167, 181-82 (2001).

  CONCLUSION

  For the foregoing reasons, the Court GRANTS Petitioner's Motion to proceed in forma pauperis and DISMISSES this action without prejudice and with leave to amend. If Petitioner wishes to proceed with this case, he must submit, no later than November 28, 2005 a First Amended Petition which alleges exhaustion of his state judicial remedies by having brought the present claims to the California Supreme Court.*fn1

  IT IS SO ORDERED.

20051003

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