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Warshaw v. Pollard

United States District Court, S.D. California

October 29, 2019

CHRISTOPHER D. WARSAW, Petitioner,
v.
MARCUS POLLARD, Warden, Respondent.

          ORDER: (1) DENYING REQUEST TO PROCEED IN FORMA PAUPERIS AS MOOT AND (2) DISMISSING FIRST AMENDED PETITION WITHOUT PREJUDICE

          HON. CATHY ANN BENCIVENGO UNITED STATES DISTRICT JUDGE

         On 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.)

         REQUEST TO PROCEED IN FORMA PAUPERIS

         As 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 moot.

         FAILURE TO ALLEGE EXHAUSTION OF STATE JUDICIAL REMEDIES

         The 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.

         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).

         Nowhere 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. 1994).

         Further, 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 latest of:

(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 ...

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