United States District Court, S.D. California
November 1, 2005.
SHAWN LIONEL LEWIS, Petitioner,
SUPERIOR COURT OF CALIFORNIA, Respondent.
The opinion of the court was delivered by: LARRY BURNS, Magistrate Judge
ORDER DISMISSING CASE WITHOUT PREJUDICE AND WITH LEAVE TO AMEND
Petitioner, a state prisoner proceeding pro se, has filed a
Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254.
FAILURE TO PAY FILING FEE OR MOVE TO PROCEED IN FORMA PAUPERIS
Petitioner has failed to pay the $5.00 filing fee and has
failed to move to proceed in forma pauperis. Because this Court
cannot proceed until Petitioner has either paid the $5.00 filing
fee or qualified to proceed in forma pauperis, the Court
DISMISSES the case without prejudice. See Rule 3(a), 28
U.S.C. foll. § 2254. If Petitioner wishes to proceed with this
case, he must submit, no later than December 28, 2005, a copy
of this Order with the $5.00 fee or with adequate proof of his
inability to pay the fee.*fn1 FAILURE TO NAME A PROPER RESPONDENT
Furthermore, review of the Petition reveals that the Petition
must be dismissed because Petitioner has failed to name a proper
respondent. On federal habeas, a state prisoner must name the
state officer having custody of him as the respondent.
Ortiz-Sandoval v. Gomez, 81 F.3d 891, 894 (9th Cir. 1996)
(citing Rule 2(a), 28 U.S.C. foll. § 2254). "The `state officer
having custody' may be `either the warden of the institution in
which the petitioner is incarcerated . . . or the chief officer
in charge of state penal institutions.'" Id. (quoting Rule
2(a), 28 U.S.C. foll. § 2254 advisory committee's note).
Here, Petitioner incorrectly named "Superior Court of San
Diego" as Respondent. In order for this Court to entertain the
Petition filed in this action, Petitioner must name the warden
currently in charge of the state correctional facility in which
Petitioner is presently confined or the Director of the
California Department of Corrections. Brittingham v.
United States, 982 F.2d 378, 379 (9th Cir. 1992) (per curiam).
FAILURE TO STATE FACTS SUPPORTING GROUNDS FOR RELIEF IN PETITION
In addition, Rule 2(c) of the Rules Governing Section 2254
Cases states that the petition "shall set forth in summary form
the facts supporting each of the grounds . . . specified [in the
petition]." Rule 2(c), 28 U.S.C. foll. § 2254. See also Boehme
v. Maxwell, 423 F.2d 1056, 1058 (9th Cir. 1970) (trial court's
dismissal of federal habeas proceeding affirmed where petitioner
made conclusory allegations instead of factual allegations
showing that he was entitled to relief). Here, Petitioner has
violated Rule 2(c). Although Petitioner does not fail to cite
federal grounds for relief in the Petition, he does fail to
provide any factual support for such relief.
While courts should liberally interpret pro se pleadings with
leniency and understanding, this should not place on the
reviewing court the entire onus of ferreting out grounds for
relief. Cf. Burkey v. Deeds, 824 F. Supp. 190, 193 (D. Nev.
1993) (finding that courts do not have entire onus of creating
federal claim for petitioner). The Court finds that the Petition
contains conclusory allegations without any factual basis alleged
for relief. A federal court may not entertain a petition that
contains allegations which are conclusory. This Court would have to engage in a tenuous analysis in order
to attempt to identify and make sense of the Petition. In order
to satisfy Rule 2(c), Petitioner must point to a "real
possibility of constitutional error." Cf. Blackledge v.
Allison, 431 U.S. 63, 75 n. 7 (1977) (internal quotation marks
omitted). Facts must be stated, in the petition, with
sufficient detail to enable the Court to determine, from the face
of the petition, whether further habeas corpus review is
warranted. Adams v. Armontrout, 897 F.2d 332, 334 (8th Cir.
1990). Moreover, the allegations should be sufficiently specific
to permit the respondent to assert appropriate objections and
defenses. Harris v. Allen, 739 F. Supp. 564, 565 (W.D. Okla.
1989). Here, the lack of grounds for relief in the Petition
prevents the Respondent from being able to assert appropriate
objections and defenses.
Due to Petitioner's unsatisfactory showing, the Court dismisses
the action without prejudice. Should Petitioner decide to file a
new petition, he is advised to clearly and succinctly state all
grounds for relief using the First Amended Petition form sent to
Petitioner with this order.
FAILURE TO ALLEGE EXHAUSTION OF STATE JUDICIAL REMEDIES
Finally, even if the Petition raised a discernable claim, it is
subject to dismissal because Petitioner has failed to allege
exhaustion of state judicial remedies. 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).
Nowhere on the Petition does Petitioner allege that he raised
his claims in the California Supreme Court. If Petitioner has
raised his claims in the California Supreme Court he must so
specify. "The burden of proving that a claim has been exhausted
lies with the petitioner." Matthews v. Evatt, 105 F.3d 907, 911
(4th Cir. 1997); see Breard v. Pruett, 134 F.3d 615, 619 (4th
Cir. 1998); Lambert v. Blackwell, 134 F.3d 506, 513 (3d Cir.
1997); Oyler v. Allenbrand, 23 F.3d 292, 300 (10th Cir. 1994);
Rust v. Zent, 17 F.3d 155, 160 (6th Cir. 1994).
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. 2002).
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). 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, absent 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).
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 exhibits annexed to it 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.
Accordingly, the Court DISMISSES the Petition without
prejudice and with leave to amend for failure to allege satisfy
the filing fee requirement, failure to name a proper respondent,
failure to allege supporting facts and failure to allege
exhaustion of state judicial remedies. To have this case
reopened, Petitioner must, no later than December 28, 2005, (1)
either pay the filing fee or submit adequate proof of his
inability to pay and (2) file a First Amended Petition which
cures the deficiencies set forth above.*fn2
IT IS SO ORDERED.
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