1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 JUAN COSINERO, Case No.: 3:20-cv-1388-WQH-AHG

12 Petitioner,

ORDER DISMISSING CASE

13 v. WITHOUT PREJUDICE AND WITH

LEAVE TO AMEND

14 UNKNOWN, 15 Respondent. 16 17 Petitioner, a state prisoner proceeding pro se, has filed a Petition for Writ of 18 Habeas Corpus pursuant to 28 U.S.C. § 2254. 19 FAILURE TO SATISFY THE FILING FEE REQUIREMENT 20 Petitioner has failed to pay the $5.00 filing fee and has failed to move to proceed in 21 forma pauperis. Because this Court cannot proceed until Petitioner has either paid the 22 $5.00 filing fee or qualified to proceed in forma pauperis, the Court DISMISSES the 23 case without prejudice. See Rule 3(a), 28 U.S.C. foll. § 2254. If Petitioner wishes to 24 proceed with this case, he must submit, no later than September 28, 2018, a copy of this 25 Order with the $5.00 fee or with adequate proof of his inability to pay the fee. 26 FAILURE TO NAME A PROPER RESPONDENT 27 Review of the Petition also reveals that Petitioner has failed to name a proper 28 respondent. On federal habeas, a state prisoner must name the state officer having 1 custody of him as the respondent. Ortiz-Sandoval v. Gomez, 81 F.3d 891, 894 (9th Cir. 2 1996) (citing Rule 2(a), 28 U.S.C. foll. § 2254). Federal courts lack personal jurisdiction 3 when a habeas petition fails to name a proper respondent. See id. 4 The warden is the typical respondent. However, “the rules following section 2254 5 do not specify the warden.” Id. “[T]he ‘state officer having custody’ may be ‘either the 6 warden of the institution in which the petitioner is incarcerated . . . or the chief officer in 7 charge of state penal institutions.’” Id. (quoting Rule 2(a), 28 U.S.C. foll. § 2254 8 advisory committee’s note). If “a petitioner is in custody due to the state action he is 9 challenging, ‘[t]he named respondent shall be the state officer who has official custody of 10 the petitioner (for example, the warden of the prison).’” Id. (quoting Rule 2, 28 U.S.C. 11 foll. § 2254 advisory committee’s note). 12 A long-standing rule in the Ninth Circuit holds “that a petitioner may not seek [a 13 writ of] habeas corpus against the State under . . . [whose] authority . . . the petitioner is 14 in custody. The actual person who is [the] custodian [of the petitioner] must be the 15 respondent.” Ashley v. Washington, 394 F.2d 125, 126 (9th Cir. 1968). This requirement 16 exists because a writ of habeas corpus acts upon the custodian of the state prisoner, the 17 person who will produce “the body” if directed to do so by the Court. “Both the warden 18 of a California prison and the Director of Corrections for California have the power to 19 produce the prisoner.” Ortiz-Sandoval, 81 F.3d at 895. 20 Here, Petitioner has failed to name a respondent. In order for this Court to entertain 21 the Petition filed in this action, Petitioner must name the warden in charge of the state 22 correctional facility in which Petitioner is presently confined or the Secretary of the 23 California Department of Corrections and Rehabilitation. Brittingham v. United States, 24 982 F.2d 378, 379 (9th Cir. 1992) (per curiam). 25 FAILURE TO STATE A COGNIZABLE FEDERAL CLAIM 26 Additionally, in accordance with Rule 4 of the rules governing § 2254 cases, 27 Petitioner has failed to allege that his state court conviction or sentence violates the 28 Constitution of the United States. 1 Title 28, United States Code, § 2254(a), sets forth the following scope of review 2 for federal habeas corpus claims: 3 The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an application for a writ of habeas 4 corpus in behalf of a person in custody pursuant to the 5 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 6 United States. 7 8 28 U.S.C. § 2254(a) (emphasis added). See Hernandez v. Ylst, 930 F.2d 714, 719 (9th 9 Cir. 1991); Mannhalt v. Reed, 847 F.2d 576, 579 (9th Cir. 1988); Kealohapauole v. 10 Shimoda, 800 F.2d 1463, 1464-65 (9th Cir. 1986). Thus, to present a cognizable federal 11 habeas corpus claim under § 2254, a state prisoner must allege both that he is in custody 12 pursuant to a “judgment of a State court,” and that he is in custody in “violation of the 13 Constitution or laws or treaties of the United States.” See 28 U.S.C. § 2254(a). 14 Here, Petitioner claims that he “did not commit the crimes [he] was accused [of] 15 and sentenced” for. (Pet., ECF No. 1 at 6.) He further contends he “feel[s] that [he] was 16 not represented fairly” and that he did not understand the proceedings due to his inability 17 to understand English and “lack of knowledge of the law.” (Id.) In no way does 18 Petitioner claim he is “in custody in violation of the Constitution or laws or treaties of the 19 United States.” 28 U.S.C. § 2254. 20 Further, the Court notes that Petitioner cannot simply amend his Petition to state a 21 federal habeas claim and then refile the amended petition in this case. He must exhaust 22 state judicial remedies before bringing his claims via federal habeas. State prisoners who 23 wish to challenge their state court conviction must first exhaust state judicial remedies. 24 28 U.S.C. § 2254(b), (c); Granberry v. Greer, 481 U.S. 129, 133-34 (1987). To exhaust 25 state judicial remedies, a California state prisoner must present the California Supreme 26 Court with a fair opportunity to rule on the merits of every issue raised in his or her 27 federal habeas petition. See 28 U.S.C. § 2254(b), (c); Granberry, 481 U.S. at 133-34. 28 Moreover, to properly exhaust state court judicial remedies a petitioner must allege, in 1 state court, how one or more of his or her federal rights have been violated. The Supreme 2 Court in Duncan v. Henry, 513 U.S. 364 (1995) reasoned: “If state courts are to be given 3 the opportunity to correct alleged violations of prisoners’ federal rights, they must surely 4 be alerted to the fact that the prisoners are asserting claims under the United States 5 Constitution.” Id. at 365-66 (emphasis added). For example, “[i]f a habeas petitioner 6 wishes to claim that an evidentiary ruling at a state court trial denied him the due process 7 of law guaranteed by the Fourteenth Amendment, he must say so, not only in federal 8 court, but in state court.” Id. (emphasis added). 9 Additionally, the Court cautions Petitioner that under the Antiterrorism and 10 Effective Death Penalty Act of 1996, a one-year period of limitation shall apply to a 11 petition for a writ of habeas corpus by a person in custody pursuant to the judgment of a 12 State court. The limitation period shall run from the latest of: 13 (A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for 14 seeking such review; 15 (B) the date on which the impediment to filing an 16 application created by State action in violation of the 17 Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action; 18

19 (C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has 20 been newly recognized by the Supreme Court and made 21 retroactively applicable to cases on collateral review; or

22 (D) the date on which the factual predicate of the claim 23 or claims presented could have been discovered through the exercise of due diligence. 24

25 28 U.S.C. § 2244(d)(1)(A)-(D) (West Supp. 2002). 26 The Court also notes that the statute of limitations does not run while a properly 27 filed state habeas corpus petition is pending. 28 U.S.C. § 2244(d)(2); see Nino v. Galaza, 28 183 F.3d 1003, 1006 (9th Cir. 1999). But see Artuz v. Bennett, 531 U.S. 4, 8 (2000) 1 || (holding that “an application is ‘properly filed’ when its delivery and acceptance [by the 2 || appropriate court officer for placement into the record] are in compliance with the 3 || applicable laws and rules governing filings.”’). However, absent some other basis for 4 || tolling, the statute of limitations does run while a federal habeas petition is pending. 5 || Duncan v. Walker, 533 U.S. 167, 181-82 (2001). 6 CONCLUSION 7 Accordingly, the Court DISMISSES the Petition without prejudice due to 8 || Petitioner’s failure to satisfy the filing fee requirement, failure to name a proper 9 ||respondent and failure to state a cognizable claim on federal habeas. To have this case 10 || reopened, Petitioner must, no later than September 28, 2020, (1) either pay the filing 11 or proved adequate proof of his inability to pay and (2) file a First Amended Petition 12 || which cures the pleading deficiencies outlined above. For Petitioner’s convenience, the 13 || Clerk of Court shall attach to this Order a blank In Forma Pauperis Application and a 14 blank Amended Petition form. 15 IT IS SO ORDERED. 16 |} Dated: July 27, 2020 BE: Kho □□□ A a 17 Hon, William Q. Hayes 18 United States District Court 19 20 21 22 23 24 25 26 27 28