1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 DELBERT RONDELL GARDNER, Case No. 19cv2214-MMA (MDD)

12 Petitioner,

ORDER (1) CONSTRUING TRUST

13 v. ACCOUNT STATEMENT AS

MOTION TO PROCEED IN FORMA

14 KEN CLARK,

PAUPERIS; (2) GRANTING

15 Respondent. MOTION TO PROCEED IN FORMA PAUPERIS; and (3) DISMISSING 16

CASE WITHOUT PREJUDICE AND

17 WITH LEAVE TO AMEND

18 19 Petitioner, a state prisoner proceeding pro se, has submitted a Petition for Writ of 20 Habeas Corpus pursuant to 28 U.S.C. § 2254. 21 CONSTRUING TRUST ACCOUNT STATEMENT AS A MOTION TO 22 PROCEED IN FORMA PAUPERIS AND GRANTING MOTION 23 Petitioner has not filed a motion to proceed in forma pauperis, but has submitted a 24 trust account statement from the California correctional institution in which he is 25 presently confined. The Court CONSTRUES the trust account statement as a motion to 26 proceed in forma pauperis. Further, because Petition has $0.00 in his account and 27 therefore cannot afford the $5.00 filing fee, the Court GRANTS Petitioner’s application 28 to proceed in forma pauperis, and allows Petitioner to prosecute the above-referenced 1 action without being required to prepay fees or costs and without being required to post 2 security. The Clerk of the Court shall file the Petition for Writ of Habeas Corpus without 3 prepayment of the filing fee. 4 FAILURE TO STATE GROUNDS FOR RELIEF IN PETITION 5 In addition, Rule 2(c) of the Rules Governing Section 2254 Cases states that the 6 petition “shall set forth in summary form the facts supporting each of the grounds . . . 7 specified [in the petition].” Rule 2(c), 28 U.S.C. foll. § 2254; see also Boehme v. 8 Maxwell, 423 F.2d 1056, 1058 (9th Cir. 1970) (trial court’s dismissal of federal habeas 9 proceeding affirmed where petitioner made conclusory allegations instead of factual 10 allegations showing that he was entitled to relief). Here, Petitioner has violated Rule 11 2(c). Although Petitioner does not fail to state factual allegations in the Petition, he does 12 fail to state any grounds for relief in the Petition. 13 While courts should liberally interpret pro se pleadings with leniency and 14 understanding, this should not place on the reviewing court the entire onus of ferreting 15 out grounds for relief. See Zichko v. Idaho, 247 F.3d 1015, 1020 (9th Cir. 2001). The 16 Court finds that the Petition contains allegations without any grounds for relief. This 17 Court would have to engage in a tenuous analysis in order to attempt to identify and make 18 sense of the Petition and its attachments. In order to satisfy Rule 2(c), Petitioner must 19 point to a “real possibility of constitutional error.” Cf. Blackledge v. Allison, 431 U.S. 63, 20 75 n.7 (1977) (internal quotation marks omitted). Facts must be stated, in the petition, 21 with sufficient detail to enable the Court to determine, from the face of the petition, 22 whether further habeas corpus review is warranted. Adams v. Armontrout, 897 F.2d 332, 23 334 (8th Cir. 1990). Moreover, the allegations should be sufficiently specific to permit 24 the respondent to assert appropriate objections and defenses. Harris v. Allen, 739 F. 25 Supp. 564, 565 (W.D. Okla. 1989). Here, the lack of grounds for relief in the Petition 26 prevents the Respondent from being able to assert appropriate objections and defenses. 27 / / / 28 / / / 1 FAILURE TO ALLEGE EXHAUSTION OF STATE JUDICIAL REMEDIES 2 Further, habeas petitioners who wish to challenge either their state court conviction 3 or the length of their confinement in state prison, must first exhaust state judicial 4 remedies. 28 U.S.C. § 2254(b), (c); Granberry v. Greer, 481 U.S. 129, 133–34 (1987). 5 Ordinarily, to satisfy the exhaustion requirement, a petitioner must “‘fairly present[]’ his 6 federal claim to the highest state court with jurisdiction to consider it, or . . . 7 demonstrate[] that no state remedy remains available.” Johnson v. Zenon, 88 F.3d 828, 8 829 (9th Cir. 1996) (citations omitted). Moreover, to properly exhaust state court 9 remedies a petitioner must allege, in state court, how one or more of his or her federal 10 rights have been violated. For example, “[i]f a habeas petitioner wishes to claim that an 11 evidentiary ruling at a state court trial denied him [or her] the due process of law 12 guaranteed by the Fourteenth Amendment, he [or she] must say so, not only in federal 13 court, but in state court.” See Duncan v. Henry, 513 U.S. 364, 365–66 (1995)(emphasis 14 added). 15 It is not clear from the Petition that Petitioner has exhausted any claims in the 16 California Supreme Court. If Petitioner has raised his claims in the California Supreme 17 Court, he must so specify. 18 Further, the Court cautions Petitioner that under the Antiterrorism and Effective 19 Death Penalty Act of 1996 (AEDPA) a one-year period of limitation applies to a petition 20 for a writ of habeas corpus by a person in custody pursuant to the judgment of a State 21 court. The limitation period runs from the latest of: 22 (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; 23

24 (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 25 removed, if the applicant was prevented from filing by such State action; 26 (C) the date on which the constitutional right asserted was initially 27 recognized by the Supreme Court, if the right has been newly recognized by 28 1 the Supreme Court and made retroactively applicable to cases on collateral review; or 2

3 (D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence. 4

5 28 U.S.C.A. § 2244(d)(1)(A)–(D) (West Supp. 2002). 6 The statute of limitations does not run while a properly filed state habeas corpus 7 petition is pending. 28 U.S.C. § 2244(d)(2); see Nino v. Galaza, 183 F.3d 1003, 1006 8 (9th Cir. 1999). But see Artuz v. Bennett, 531 U.S. 4, 8 (2000) (holding that “an 9 application is ‘properly filed’ when its delivery and acceptance [by the appropriate court 10 officer for placement into the record] are in compliance with the applicable laws and 11 rules governing filings.”). However, absent some other basis for tolling, the statute of 12 limitations does run while a federal habeas petition is pending. Duncan v. Walker, 533 13 U.S. 167, 181–82 (2001). 14 Rule 4 of the Rules Governing Section 2254 Cases provides for summary dismissal 15 of a habeas petition “[i]f it plainly appears from the face of the petition and any exhibits 16 annexed to it that the petitioner is not entitled to relief in the district court . . . .” Rule 4, 17 28 U.S.C. foll. § 2254. Here, it appears plain from the Petition that Petitioner is not 18 presently entitled to federal habeas relief because he has not alleged exhaustion of state 19 court remedies. 20 / / / 21 / / / 22 / / / 23 / / / 24 / / / 25 / / / 26 / / / 27 / / / 28 / / / 1 CONCLUSION 2 For the foregoing reasons, the Court DISMISSES the Petition without prejudice 3 ||and with leave to amend. To have this case reopened, Petitioner must, no later than 4 February 10, 2020, filed a First Amended Petition that cures the pleading deficiencies 5 || outlined in this Order. The Clerk of Court is directed to mail Petitioner a blank First 6 || Amended Petition form together with a copy of this Order. 7 IT IS SO ORDERED. 8 || Dated: December 4, 2019

10 Hon. Michael M. Anello 11 United States District Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28