1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 TERRY LEWIS, Case No.: 20cv0195 GPC (AGS)

12 Petitioner,

ORDER: (1) DENYING SECOND

13 v. MOTION TO PROCEED IN FORMA PAUPERIS [ECF No. 12] AS MOOT; 14 HON. JANIS SAMMARTINO, et al., and (2) DISMISSING CASE WITHOUT

15 PREJUDICE AND WITH LEAVE TO Respondent. AMEND; and (3) DENYING REQUEST 16

FOR EXTENSION OF TIME AS

17 MOOT [ECF NO. 10] 18 Petitioner, a state prisoner proceeding pro se, submitted a Petition for Writ of 19 Habeas Corpus pursuant to 28 U.S.C. § 2254 on January 15, 2020, to the United States 20 District Court for the Central District of California. (ECF No. 1.) On January 30, 2020, 21 the case was transferred to this Court. (ECF No. 3.) This Court dismissed the action 22 without prejudice and with leave to amend on February 19, 2020, and Petitioner was 23 given until April 6, 2020 to either pay the $5.00 filing fee or submit adequate proof of his 24 inability to pay the fee, and to file a First Amended Petition that cured the pleading 25 deficiencies outlined in the Court’s Order. (Id.) 26 On March 23, 2020, Petitioner filed a Motion to Proceed in Forma Pauperis and a 27 First Amended Petition. (ECF Nos. 7-8.) On April 6, 2020, the Court granted the 28 Motion to Proceed in Forma Pauperis and dismissed the case without prejudice and with 1 leave to amend. (ECF No. 9.) Petitioner was given until June 5, 2020, to file a Second 2 Amended Petition. (Id.) 3 On April 22, 2020, Petitioner filed a Second Amended Petition and a second 4 Motion to Proceed in Forma Pauperis. (ECF Nos. 11-12.) 5 MOTION TO PROCEED IN FORMA PAPERIS 6 Petitioner was granted in forma pauperis status on April 6, 2020. (ECF No. 9.) 7 Accordingly the Court DENIES Petitioner’s second Motion to Proceed in Forma Pauperis 8 [ECF No. 12] as moot. 9 FAILURE TO NAME A PROPER RESPONDENT 10 Review of the Petition reveals that Petitioner has again failed to name a proper 11 respondent. On federal habeas, a state prisoner must name the state officer having 12 custody of him as the respondent. Ortiz-Sandoval v. Gomez, 81 F.3d 891, 894 (9th Cir. 13 1996) (citing Rule 2(a), 28 U.S.C. foll. § 2254). Federal courts lack personal jurisdiction 14 when a habeas petition fails to name a proper respondent. See id. 15 The warden is the typical respondent. However, “the rules following section 2254 16 do not specify the warden.” Id. “[T]he ‘state officer having custody’ may be ‘either the 17 warden of the institution in which the petitioner is incarcerated . . . or the chief officer in 18 charge of state penal institutions.’” Id. (quoting Rule 2(a), 28 U.S.C. foll. § 2254 19 advisory committee’s note). If “a petitioner is in custody due to the state action he is 20 challenging, ‘[t]he named respondent shall be the state officer who has official custody of 21 the petitioner (for example, the warden of the prison).’” Id. (quoting Rule 2, 28 U.S.C. 22 foll. § 2254 advisory committee’s note). 23 A long-standing rule in the Ninth Circuit holds “that a petitioner may not seek [a 24 writ of] habeas corpus against the State under . . . [whose] authority . . . the petitioner is 25 in custody. The actual person who is [the] custodian [of the petitioner] must be the 26 respondent.” Ashley v. Washington, 394 F.2d 125, 126 (9th Cir. 1968). This requirement 27 exists because a writ of habeas corpus acts upon the custodian of the state prisoner, the 28 person who will produce “the body” if directed to do so by the Court. “Both the warden 1 of a California prison and the Director of Corrections for California have the power to 2 produce the prisoner.” Ortiz-Sandoval, 81 F.3d at 895. Here, Petitioner has incorrectly 3 named “Hon. Janis Sammartino, Warden David Baughman, United States Department of 4 Justice, Attorney General, and Judge Thompson,” as Respondents. In order for this Court 5 to entertain the Petition filed in this action, Petitioner must name the warden in charge of 6 the state correctional facility in which Petitioner is presently confined or the Secretary of 7 the California Department of Corrections and Rehabilitation. Brittingham v. United 8 States, 982 F.2d 378, 379 (9th Cir. 1992) (per curiam). 9 FAILURE TO ALLEGE EXHAUSTION OF STATE JUDICIAL REMEDIES 10 Petitioner has also failed to demonstrate he has exhausted his state judicial 11 remedies with respect to his claims. Habeas petitioners who wish to challenge either 12 their state court conviction or the length of their confinement in state prison, must first 13 exhaust state judicial remedies. 28 U.S.C. § 2254(b), (c); Granberry v. Greer, 481 U.S. 14 129, 133-34 (1987). To exhaust state judicial remedies, a California state prisoner must 15 present the California Supreme Court with a fair opportunity to rule on the merits of 16 every issue raised in his or her federal habeas petition. 28 U.S.C. § 2254(b), (c); 17 Granberry, 481 U.S. at 133-34. Moreover, to properly exhaust state court remedies a 18 petitioner must allege, in state court, how one or more of his or her federal rights have 19 been violated. The Supreme Court in Duncan v. Henry, 513 U.S. 364 (1995) reasoned: 20 “If state courts are to be given the opportunity to correct alleged violations of prisoners’ 21 federal rights, they must surely be alerted to the fact that the prisoners are asserting 22 claims under the United States Constitution.” Id. at 365-66 (emphasis added). For 23 example, “[i]f a habeas petitioner wishes to claim that an evidentiary ruling at a state 24 court trial denied him [or her] the due process of law guaranteed by the Fourteenth 25 Amendment, he [or she] must say so, not only in federal court, but in state court.” Id. at 26 366 (emphasis added). 27 Nowhere on the Petition does Petitioner allege that he raised his claims in the 28 California Supreme Court. If Petitioner has raised his claims in the California Supreme 1 Court he must so specify. “The burden of proving that a claim has been exhausted lies 2 with the petitioner.” Matthews v. Evatt, 105 F.3d 907, 911 (4th Cir. 1997); see Breard v. 3 Pruett, 134 F.3d 615, 619 (4th Cir. 1998); Lambert v. Blackwell, 134 F.3d 506, 513 (3d 4 Cir. 1997); Oyler v. Allenbrand, 23 F.3d 292, 300 (10th Cir. 1994); Rust v. Zent, 17 F.3d 5 155, 160 (6th Cir. 1994). 6 Further, the Court cautions Petitioner that under the Antiterrorism and Effective 7 Death Penalty Act of 1996 (AEDPA) a one-year period of limitation shall apply to a 8 petition for a writ of habeas corpus by a person in custody pursuant to the judgment of a 9 State court. The limitation period shall run from the latest of: 10 (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; 11

12 (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 13 removed, if the applicant was prevented from filing by such State action; 14 (C) the date on which the constitutional right asserted was initially 15 recognized by the Supreme Court, if the right has been newly recognized by 16 the Supreme Court and made retroactively applicable to cases on collateral review; or 17

18 (D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence. 19

20 28 U.S.C. § 2244(d)(1)(A)-(D) (West 2006). 21 The statute of limitations does not run while a properly filed state habeas corpus 22 petition is pending. 28 U.S.C. § 2244(d)(2); see Nino v. Galaza, 183 F.3d 1003, 1006 23 (9th Cir. 1999). But see Artuz v. Bennett, 531 U.S. 4, 8 (2000) (holding that “an 24 application is ‘properly filed’ when its delivery and acceptance [by the appropriate court 25 officer for placement into the record] are in compliance with the applicable laws and 26 rules governing filings.”). However, absent some other basis for tolling, the statute of 27 limitations does run while a federal habeas petition is pending. Duncan v. Walker, 533 28 U.S. 167, 181-82 (2001). 1 FAILURE TO STATE A COGNIZABLE FEDERAL CLAIM 2 On the first page of his Petition, Petitioner refers to section 1983. (Am. Pet., ECF 3 No. 11 at 1.) In the body of the petition he claims he was placed in a cell with another 4 inmate who was positive for the COVID-19 virus and that he was attacked and beaten by 5 prison guards. (Id. at 2-6.) These claims are not cognizable on federal habeas corpus 6 review because they do not challenge the constitutional validity or duration of 7 confinement. See 28 U.S.C. § 2254(a); Preiser v. Rodriguez, 411 U.S. 475, 500 (1973); 8 Heck v. Humphrey, 512 U.S. 477, 480-85 (1994). Challenges to the fact or duration of 9 confinement are brought by petition for a writ of habeas corpus, pursuant to 28 U.S.C. 10 § 2254; challenges to conditions of confinement are brought pursuant to the Civil Rights 11 Act, 42 U.S.C. § 1983. See Preiser, 411 U.S. at 488-500. When a state prisoner is 12 challenging the very fact or duration of his physical imprisonment, and the relief he seeks 13 is a determination that he is entitled to immediate release or a speedier release from that 14 imprisonment, his sole federal remedy is a writ of habeas corpus. Id. at 500. On the 15 other hand, a 42 U.S.C. § 1983 action is a proper remedy for a state prisoner who is 16 making a constitutional challenge to the conditions of his prison life, but not to the fact or 17 length of his custody. Id. at 499; McIntosh v. United States Parole Comm’n, 115 F.3d 18 809, 811-12 (10th Cir. 1997). 19 Additionally, in accordance with Rule 4 of the rules governing § 2254 cases, 20 Petitioner has failed to allege that his state court conviction or sentence violates the 21 Constitution of the United States. Title 28, United States Code, § 2254(a), sets forth the 22 following scope of review for federal habeas corpus claims: 23 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 24 person in custody pursuant to the judgment of a State court only on the 25 ground that he is in custody in violation of the Constitution or laws or treaties of the United States. 26

27 28 U.S.C. § 2254(a) (emphasis added). See Hernandez v. Ylst, 930 F.2d 714, 719 (9th 28 Cir. 1991); Mannhalt v. Reed, 847 F.2d 576, 579 (9th Cir. 1988). Thus, to present a 1 || cognizable federal habeas corpus claim under § 2254, a state prisoner must allege both 2 || that he is in custody pursuant to a “judgment of a State court,” and that he is in custody in 3 || “violation of the Constitution or laws or treaties of the United States.” See 28 U.S.C. A 2254(a). In the Petition, Petitioner asks to be paroled and to have his strike convictions 5 || stricken pursuant to Romero v. Superior Court. (ECF No. 11 at 4-5.) While Petitioner 6 || seeks to be released from custody, he does not claim he is “in custody in violation of the 7 || Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254. 8 CONCLUSION 9 For the foregoing reasons, the Court DENIES the request to proceed in forma 10 || pauperis as moot and DISMISSES the case without prejudice and with leave to amend. 11 || If Petitioner wishes to challenge the validity of his state court conviction or sentence and 12 this case reopened, he must, no later than July 6, 2020, submit a Third Amended 13 || Petition that cures the pleading deficiencies outlined in this Order. If Petitioner wishes to 14 || challenge the conditions of his confinement pursuant to 42 U.S.C. § 1983, he must file a 15 || new case with a new 42 U.S.C. § 1983 complaint which will be given a new case 16 |}number. Petitioner is cautioned that if he does not file a Third Amended Petition that 17 || cures the pleading deficiencies outlined in this Order, he will not be given further leave to 18 amend and will have to file a new habeas corpus petition that will be given a new case 19 number. 20 The Clerk of Court is directed to mail Petitioner a blank Second Amended 21 || Petition pursuant to 28 U.S.C. § 2254 form and a blank Civil Rights Complaint 22 ||pursuant to 42 U.S.C. § 1983 form together with a copy of this Order. 23 The Court also DENIES Petitioner’s request for extension of time to file his 24 || amended petition as moot. 25 IT IS SO ORDERED. 26 ||Dated: April 29, 2020 2 27 Hon. athe Ck 28 United States District Judge