Peavy v. Madden

          ORDER DISMISSING FIRST AMENDED PETITION WITHOUT PREJUDICE AND GRANTING FINAL EXTENSION OF TIME TO AMEND

          HON. MICHAEL M. ANELLO, UNITED STATES DISTRICT JUDGE.

         On 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).

         The 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.^[1]

         FAILURE TO SIGN PETITION UNDER PENALTY OF PERJURY

         Rule 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.)

         FAILURE TO STATE A COGNIZABLE FEDERAL CLAIM

         Additionally, 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).

         Thus, 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. § 2254(a).

         Petitioner 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.

         FAILURE TO ALLEGE EXHAUSTION OF STATE COURT 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).

         The 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 ...