United States District Court, S.D. California
ORDER DENYING IN FORMA PAUPERIS APPLICATION AND
DISMISSING CASE WITHOUT PREJUDICE
HON.
GONZALO P. CURIEL UNITED STATES DISTRICT JUDGE.
Petitioner,
a state prisoner proceeding pro se, has not paid the $5.00
filing fee and has filed a Petition for Writ of Habeas Corpus
pursuant to 28 U.S.C. § 2254, together with a request to
proceed in forma pauperis pursuant to 28 U.S.C. §
1915(a).
REQUEST
TO PROCEED IN FORMA PAUPERIS
The
request to proceed in forma pauperis is denied because
Petitioner has not provided the Court with sufficient
information to determine Petitioner's financial status. A
request to proceed in forma pauperis made by a state prisoner
must include a certificate from the warden or other
appropriate officer showing the amount of money or securities
Petitioner has on account in the institution. Rule 3(a)(2),
28 U.S.C. foll. § 2254; Local Rule 3.2. Petitioner has
failed to provide the Court with a required Prison
Certificate signed by an authorized prison official.
Accordingly, the Court DENIES the request to
proceed in forma pauperis.
FAIULRE
TO STATE A COGNIZABLE FEDERAL CLAIM
Additionally,
the Petition must be dismissed because Petitioner has failed
to allege that his state court conviction or sentence
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). See Hernandez
v. Ylst, 930 F.2d 714, 719 (9th Cir. 1991); Mannhalt
v. Reed, 847 F.2d 576, 579 (9th Cir. 1988);
Kealohapauole v. Shimoda, 800 F.2d 1463, 1464-65
(9th Cir. 1986). 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).
Here,
Petitioner contends he is entitled to resentencing under
newly enacted California laws regarding gun enhancements and
prior serious felony enhancements passed as California Senate
Bill Nos. 620 and 1393, respectively. (Pet. at 6-7, ECF No.
1.) His claims, as presented, reference only California state
law. In no way does Petitioner claim he is “in custody
in violation of the Constitution or laws or treaties of the
United States.” 28 U.S.C. § 2254.
Further,
the Court notes that Petitioner cannot simply amend his
Petition to state a federal habeas claim and then refile the
amended petition in this case. He must exhaust state judicial
remedies before bringing his claims via federal habeas. State
prisoners who wish to challenge their state court conviction
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.
See 28 U.S.C. § 2254(b), (c);
Granberry, 481 U.S. at 133-34. Moreover, to properly
exhaust state court judicial 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 the due
process of law guaranteed by the Fourteenth Amendment, he
must say so, not only in federal court, but in state
court.” Id. (emphasis added).
Additionally,
the Court cautions Petitioner that under the Antiterrorism
and Effective Death Penalty Act of 1996, 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
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