United States District Court, S.D. California
December 5, 2005.
JAMES PETER ROSSI, Petitioner,
RICHARD KIRKLAND, Warden, et al., Respondents.
The opinion of the court was delivered by: JOHN HOUSTON, Magistrate Judge
ORDER DISMISSING PETITION WITHOUT PREJUDICE AND WITH LEAVE TO
On September 16, 2005, Petitioner, a state prisoner proceeding
pro se, submitted a Petition for Writ of Habeas Corpus pursuant
to 28 U.S.C. § 2254, together with a request to proceed in forma
pauperis. On September 28, 2005, this Court granted Petitioner's
request to proceed in forma pauperis, but dismissed the action
because Petitioner had failed to state a cognizable federal
claim. (See Order dated Sept. 28, 2005 [doc. no. 3].)
Petitioner was given until November 28, 2005 to file a
First Amended Petition which cured the pleading deficiencies outlined
in the Order. On November 21, 2005, Petitioner filed a
First Amended Petition.
FAILURE TO ALLEGE EXHAUSTION OF STATE JUDICIAL REMEDIES
Although Petitioner now appears to state a cognizable federal
claim at least as to claims one and two, he has failed to alleged
exhaustion of his 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).
In his petition, Petitioner specifically indicates he did not
seek review in the California Supreme Court. (See Pet. at 6-9.)
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.
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,
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.
CONCLUSION AND ORDER
For the foregoing reasons, DISMISSES this action without
prejudice and with leave to amend. To have this case reopened,
Petitioner must file a First Amended Petition no later than
January 23, 2006, that cures the pleading deficiencies set
IT IS SO ORDERED.
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