United States District Court, S.D. California
MIKE E. MITCHELL, Petitioner,
STATE OF CALIFORNIA, Respondent.
ORDER DISMISSING WITHOUT PREJUDICE
GONZALO P. CURIEL 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 THE FILING FEE REQUIREMENT
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 September
11, 2017, a copy of this Order with the $5.00 fee or
with adequate proof of his inability to pay the fee.
TO NAME A PROPER RESPONDENT
review of the Petition reveals that 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). Federal courts lack personal jurisdiction when a
habeas petition fails to name a proper respondent. See
warden is the typical respondent. However, “the rules
following section 2254 do not specify the warden.”
Id. “[T]he ‘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). If
“a petitioner is in custody due to the state action he
is challenging, ‘[t]he named respondent shall be the
state officer who has official custody of the petitioner (for
example, the warden of the prison).'” Id.
(quoting Rule 2, 28 U.S.C. foll. § 2254 advisory
standing rule in the Ninth Circuit holds “that a
petitioner may not seek [a writ of] habeas corpus against the
State under . . . [whose] authority . . . the petitioner is
in custody. The actual person who is [the] custodian [of the
petitioner] must be the respondent.” Ashley v.
Washington, 394 F.2d 125, 126 (9th Cir. 1968). This
requirement exists because a writ of habeas corpus acts upon
the custodian of the state prisoner, the person who will
produce “the body” if directed to do so by the
Court. “Both the warden of a California prison and the
Director of Corrections for California have the power to
produce the prisoner.” Ortiz-Sandoval, 81 F.3d
Petitioner has incorrectly named the “State of
California, ” as Respondent. In order for this Court to
entertain the Petition filed in this action, Petitioner must
name the warden in charge of the state correctional facility
in which Petitioner is presently confined or the Secretary of
the California Department of Corrections and Rehabilitation.
Brittingham v. United States, 982 F.2d 378, 379 (9th
Cir. 1992) (per curiam).
TO ALLEGE EXAUSTION 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).
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.
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 ...