United States District Court, S.D. California
ORDER DISMISSING CASE WITHOUT PREJUDICE AND WITH
LEAVE TO AMEND
Janis L. Sammartino, United States District Judge.
a prisoner proceeding pro se, has paid the $5.00 filing fee
and has filed a Petition for Writ of Habeas Corpus pursuant
to 28 U.S.C. § 2254.
TO ALLEGE EXHAUSTION OF STATE JUDICAL REMEDIES
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).
on the Petition does Petitioner allege that he raised his
claims in the California Supreme Court. In fact, he
specifically indicates he did not seek review in the
California Supreme Court. (See Pet. at 7.) 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); 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).
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
(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. § 2244(d)(1)(A)-(D) (West 2006).
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
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
TO STATE A ...