United States District Court, S.D. California
CHRISTOPHER D. WARSAW, Petitioner,
MARCUS POLLARD, Warden, Respondent.
ORDER: (1) DENYING REQUEST TO PROCEED IN FORMA
PAUPERIS AS MOOT AND (2) DISMISSING FIRST AMENDED PETITION
CATHY ANN BENCIVENGO UNITED STATES DISTRICT JUDGE
August 7, 2019, Petitioner, proceeding pro se, submitted a
Petition for Writ of Habeas Corpus pursuant to 28 U.S.C.
§ 2254, along with a request to proceed in forma
pauperis. (See ECF Nos. 1 & 2.) On September 4,
2019, Petitioner paid the requisite filing fee. (See
ECF No. 3.) In its September 6, 2019 Order, the Court denied
Petitioner's request to proceed in forma pauperis as moot
and dismissed the case without prejudice because Petitioner
failed to state a cognizable claim. Petitioner was instructed
that to have this case reopened he had to file a First
Amended Petition no later than November 12, 2019. On October
28, 2019, Petitioner filed a First Amended Petition (ECF No.
13) pursuant to this Court's Order, along with another
request to proceed in forma pauperis. (ECF No. 14.)
TO PROCEED IN FORMA PAUPERIS
noted above, Petitioner submitted the $5.00 filing fee on
September 4, 2019. (ECF No. 3.) Because Petitioner has paid
the filing fee, the Court DENIES
Petitioner's application to proceed in forma pauperis as
TO ALLEGE EXHAUSTION OF STATE JUDICIAL REMEDIES
First Amended Petition must be dismissed because Petitioner
has failed to allege exhaustion 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.
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
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