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