United States District Court, S.D. California
ORDER DISMISSING CASE WITHOUT PREJUDICE AND WITH
LEAVE TO AMEND
WILLIAM Q. HAYES UNITED STATES DISTRICT JUDGE
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 SATISFY FILING FEE REQUIREMENT
Petitioner
has failed to pay the $5.00 filing fee and has failed to move
to proceed in forma pauperis. This Court cannot proceed until
Petitioner has either paid the $5.00 filing fee or qualified
to proceed in forma pauperis. See Rule 3(a), 28
U.S.C. foil. § 2254.
FAILURE
TO SIGN PETITION
Rule
2(c) of the Rules Governing Section 2254 Cases provides that
"[t]he petition shall be typewritten or legibly
handwritten and shall be signed under penalty of perjury by
the petitioner." Rule 2(c), 28 U.S.C. foil. § 2254
(emphasis added). Here, Petitioner has failed to sign the
Petition.
FAILURE
TO STATE A COGNIZABLE FEDERAL CLAIM
Additionally,
in accordance with Rule 4 of the rules governing § 2254
cases, Petitioner has failed to allege that his state court
conviction or sentence violates the Constitution of the
United States.
Title
28, United States Code, § 2254(a), sets forth the
following scope of review for federal habeas corpus claims:
The Supreme Court, a Justice thereof, a circuit judge, or a
district court shall entertain an application for a writ of
habeas corpus in behalf of a person in custody pursuant to
the judgment of a State court only on the ground that he is
in custody in violation of the Constitution or laws or
treaties of the United States.
28 U.S.C. § 2254(a) (emphasis added). See Hernandez
v. Ylst, 930 F.2d 714, 719 (9th Cir. 1991); Mannhalt
v. Reed, 847 F.2d 576, 579 (9th Cir. 1988);
Kealohapauole v. Shimoda, 800 F.2d 1463, 1464-65
(9th Cir. 1986). Thus, to present a cognizable federal habeas
corpus claim under § 2254, a state prisoner must allege
both that he is in custody pursuant to a "judgment of a
State court, " and that he is in custody in
"violation of the Constitution or laws or treaties of
the United States." See 28 U.S.C. §
2254(a).
Here,
Petitioner claims "kidnapping by Judge Marilyn Huff and
claims that he is "crippled/handicapped and disabled
from San Diego Jail conditions." (Pet at
6-7.)[1] In no way does Petitioner claim he is
"in custody in violation of the Constitution or laws or
treaties of the United States." 28 U.S.C. § 2254.
Further,
the Court notes that Petitioner cannot simply amend his
Petition to state a federal habeas claim and then refile the
amended petition in this case. He must exhaust state judicial
remedies before bringing his claims via federal habeas. State
prisoners who wish to challenge their state court conviction
must first exhaust state judicial remedies. 28 U.S.C. §
2254(b), (c); Cranberry 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.
See 28 U.S.C. § 2254(b), (c);
Grcmherry, 481 U.S. at 133-34. Moreover, to properly
exhaust state court judicial 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 the due
process of law guaranteed by the Fourteenth Amendment, he
must say so, not only in federal court, but in state
court." Id. (emphasis added).
Additionally,
the Court cautions Petitioner that under the Antiterrorism
and Effective Death Penalty Act of 1996 (Act), signed into
law on April 24, 1996, a one-year period of limitation
applies to a petition for a writ of habeas corpus by a person
in custody pursuant ...