United States District Court, S.D. California
ORDER DISMISSING FIRST AMENDED PETITION WITHOUT
PREJUDICE AND GRANTING FINAL EXTENSION OF TIME TO
MICHAEL M. ANELLO, UNITED STATES DISTRICT JUDGE.
April 22, 2019, Petitioner, a state prisoner proceeding pro
se, filed a Petition for a Writ of Habeas Corpus pursuant to
28 U.S.C. § 2241. (ECF No. 1.) On April 29, 2019, the
Court construed the Petition as brought pursuant to 28 U.S.C.
§ 2254 and dismissed it without prejudice because
Petitioner failed to satisfy the filing fee requirement,
failed to name a proper respondent, failed to use a proper
form, and failed to allege exhaustion of state court
remedies. (ECF No. 2.) Petitioner was instructed that if he
wished to proceed with this action, he was required to
satisfy the filing fee requirement and file an amended
petition curing those pleading defects on or before July 5,
2019. (Id.) That deadline was extended twice, until
November 22, 2019. (ECF Nos. 7, 9.) After the extended
deadline expired, Petitioner paid the filing fee on November
25, 2019 (ECF No. 10) and filed a First Amended Petition on
December 6, 2019 (ECF No. 11).
First Amended Petition is subject to dismissal because
Petitioner has left the petition form almost entirely blank
and has not signed it. As a result, he has not satisfied the
requirements of signing the Petition under penalty of
perjury, alleging a cognizable federal claim in the body of
the Petition and alleging exhaustion of state court remedies.
The First Amended Petition is dismissed for those reasons and
Petitioner is granted one final extension of time to cure
those defects of pleading.
TO SIGN PETITION UNDER PENALTY OF PERJURY
2(c) of the Rules Governing Section 2254 Cases provides that
“[t]he petition must be printed, typewritten or legibly
handwritten; and be signed under penalty of perjury by
the petitioner or by a person authorized to sign it for the
petitioner under 28 U.S.C. § 2242.” Rule
2(c), 28 U.S.C. foll. § 2254 (emphasis added). Here,
Petitioner has not signed the Petition under penalty of
perjury. (ECF No. 11 at 12.)
TO STATE A COGNIZABLE FEDERAL CLAIM
Petitioner has failed to allege that his current confinement
violates the Constitution of the United States. Title 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) (emphasis added).
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. §
has left blank the section of the petition form directing him
to identify his claims (ECF No. 11 at 6-9) and does not
allege in what manner he is “in custody in violation of
the Constitution or laws or treaties of the United
States” in the petition form. 28 U.S.C. § 2254.
Although he appears to attempt to present two claims in an
attachment to the petition form (see ECF No. 14),
even were the Court to so construe the Petition as presenting
those claims, Petitioner has not indicated they have been
presented to the state supreme court and has therefore failed
to allege exhaustion of state court remedies as to any claim
in the Petition.
TO ALLEGE EXHAUSTION OF STATE COURT REMEDIES
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).
burden of proving a claim has been exhausted lies with
Petitioner. Cartwright v. Cupp, 650 F.2d 1103, 1104
(9th Cir. 1981). There is no indication anywhere in the
Petition that any claims have been presented to the state
supreme court, as Petitioner merely indicates he ...