United States District Court, S.D. California
ORDER DISMISSING CASE WITHOUT PREJUDICE
William Q. Hayes United States District Judge
a state prisoner proceeding pro se, has filed a Petition for
Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254.
TO SATISFY FILING FEE REQUIRMENT
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. foil. § 2254. If Petitioner wishes to proceed
with this case, he must submit, no later than August 21,
2017, a copy of this Order with the $5.00 fee or with
adequate proof of his inability to pay the fee. The Clerk of
Court shall send a blank Southern District of California In
Forma Pauperis Application to Petitioner along with a copy of
TO STATE A COGNIZABLE CLAIM ON FEDERAL HABEAS
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
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). 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).
Petitioner asks this Court to "pardon" him so that
might have a chance to remain in the United States. 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.
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); 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.
See 28 U.S.C. § 2254(b), (c);
Granberry, 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. 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.
the Court cautions Petitioner that under the Antiterrorism
and Effective Death Penalty Act of 1996, 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
(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