United States District Court, S.D. California
MICHAEL E. MAAS, Petitioner,
RONALD RACKLEY, Warden, Respondent.
ORDER: (1) CONSTRUING ACTION AS A PETITION FOR WRIT
OF HABEAS CORPUS PURSUANT TO 28 U.S.C. § 2254 (2)
GRANTING IN FORMA PAUPERIS APPLICATION (ECF. NO. 2) AND (3)
DISMISSING CASE WITHOUT PREJUDICE
CYNTHIA BASHANT UNITED STATES DISTRICT JUDGE
Michael E. Maas, a state prisoner, proceeding pro se, has
filed a Petition for Writ of Habeas Corpus pursuant to 28
U.S.C. § 2241 (ECF No. 1), along with a request to
proceed in forma pauperis (ECF No. 2). Although Petitioner
filed this action pursuant to 28 U.S.C. § 2241, he is a
state prisoner attacking the validity of a state court
conviction and sentence imposed by the State of California.
Therefore, Petitioner may not proceed under section 2241, but
may only proceed with a habeas action in federal court under
28 U.S.C. § 2254. See White v. Lambert, 370
F.3d 1002, 1006-07 (9th Cir. 2004) (holding that section 2254
is the proper jurisdictional basis for a habeas petition
brought by an individual “in custody pursuant to a
state court judgment”). The Court, therefore, CONTRUES
this action as one brought pursuant to 28 U.S.C. § 2254.
REQUEST TO PROCEED IN FORMA PAUPERIS
with his request to proceed in forma pauperis, Petitioner has
submitted a copy of his prison trust account statement which
reflects that he has no funds on account at the facility in
which he is presently confined. Petitioner cannot afford the
$5.00 filing fee. Thus, the Court GRANTS Petitioner's
application to proceed in forma pauperis (ECF No. 2). The
Clerk of the Court shall file the Petition for Writ of Habeas
Corpus without prepayment of the filing fee.
FAILURE TO ALLEGE EXHAUSTION OF STATE JUDICIAL
Petition must be dismissed, however, because Petitioner has
failed to allege exhaustion of state judicial remedies.
Further, 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 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).
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) (“[A]n 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 ...