1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 JAMIASEN DRAKE, Case No.: 3:21-cv-0497-CAB-BLM

12 Petitioner,

ORDER DENYING IN FORMA

13 v. PAUPERIS APPLICATION AND

DISMISSING CASE WITHOUT

14 MARCUS POLLARD, Warden,

PREJUDICE

15 Respondent. 16 17 Petitioner, a state prisoner proceeding pro se, has not paid the $5.00 filing fee and 18 has filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254, together 19 with a request to proceed in forma pauperis pursuant to 28 U.S.C. § 1915(a). 20 REQUEST TO PROCEED IN FORMA PAUPERIS 21 The request to proceed in forma pauperis is denied because Petitioner has not 22 provided the Court with sufficient information to determine Petitioner’s financial status. 23 A request to proceed in forma pauperis made by a state prisoner must include a signed 24 certificate from the warden or other appropriate officer showing the amount of money or 25 securities Petitioner has on account in the institution. Rule 3(a)(2), 28 U.S.C. foll. § 2254; 26 Local Rule 3.2. Petitioner has failed to provide the Court with the required Prison 27 Certificate. Accordingly, his application to proceed in forma pauperis is DENIED. 28 / / / 1 FAILURE TO STATE A COGNIZABLE CLAIM 2 Additionally, in accordance with Rule 4 of the rules governing § 2254 cases, 3 Petitioner has failed to allege that his state court conviction or sentence violates the 4 Constitution of the United States. 5 Title 28, United States Code, § 2254(a), sets forth the following scope of review 6 for federal habeas corpus claims: 7 The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an application for a writ of habeas 8 corpus in behalf of a person in custody pursuant to the 9 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 10 United States. 11 12 28 U.S.C. § 2254(a) (emphasis added). See Hernandez v. Ylst, 930 F.2d 714, 719 (9th 13 Cir. 1991); Mannhalt v. Reed, 847 F.2d 576, 579 (9th Cir. 1988); Kealohapauole v. 14 Shimoda, 800 F.2d 1463, 1464-65 (9th Cir. 1986). Thus, to present a cognizable federal 15 habeas corpus claim under § 2254, a state prisoner must allege both that he is in custody 16 pursuant to a “judgment of a State court,” and that he is in custody in “violation of the 17 Constitution or laws or treaties of the United States.” See 28 U.S.C. § 2254(a). 18 Here, Petitioner claims that he is “unconstitutionally imprisoned by CDCR due to 19 the denial of Proposition 57 credits.”1 (Pet., ECF No. 1 at 20.) Although Petitioner cites 20 to California state law and regulations, he in no way claims he is “in custody in violation 21 of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254. 22 Further, the Court notes that Petitioner cannot simply amend his Petition to state a 23 federal habeas claim and then refile the amended petition in this case. He must exhaust 24

25 26 1 California’s Proposition 57, approved by voters in November 2016, made parole more available for certain felons convicted of nonviolent crimes. See Cal. Const., art. I, § 32, subd. (a)(1). “Upon the 27 passage of Proposition 57 . . . the California Department of Corrections and Rehabilitation (CDCR) issued new regulations governing the ability of inmates to earn custody credit to advance their parole [or 28 1 state judicial remedies before bringing his claims via federal habeas. State prisoners who 2 wish to challenge their state court conviction must first exhaust state judicial remedies. 3 28 U.S.C. § 2254(b), (c); Granberry v. Greer, 481 U.S. 129, 133-34 (1987). To exhaust 4 state judicial remedies, a California state prisoner must present the California Supreme 5 Court with a fair opportunity to rule on the merits of every issue raised in his or her 6 federal habeas petition. See 28 U.S.C. § 2254(b), (c); Granberry, 481 U.S. at 133-34. 7 Moreover, to properly exhaust state court judicial remedies a petitioner must allege, in 8 state court, how one or more of his or her federal rights have been violated. The Supreme 9 Court in Duncan v. Henry, 513 U.S. 364 (1995) reasoned: “If state courts are to be given 10 the opportunity to correct alleged violations of prisoners’ federal rights, they must surely 11 be alerted to the fact that the prisoners are asserting claims under the United States 12 Constitution.” Id. at 365-66 (emphasis added). For example, “[i]f a habeas petitioner 13 wishes to claim that an evidentiary ruling at a state court trial denied him the due process 14 of law guaranteed by the Fourteenth Amendment, he must say so, not only in federal 15 court, but in state court.” Id. (emphasis added). 16 Additionally, the Court cautions Petitioner that under the Antiterrorism and 17 Effective Death Penalty Act of 1996, a one-year period of limitation shall apply to a 18 petition for a writ of habeas corpus by a person in custody pursuant to the judgment of a 19 State court. The limitation period shall run from the latest of: 20 (A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for 21 seeking such review; 22 (B) the date on which the impediment to filing an 23 application created by State action in violation of the 24 Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action; 25

26 (C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has 27 been newly recognized by the Supreme Court and made 28 retroactively applicable to cases on collateral review; or 1 (D) the date on which the factual predicate of the claim 7 or claims presented could have been discovered through the exercise of due diligence. 3 4 || 28 U.S.C. § 2244(d)(1)(A)-(D) (West Supp. 2002). 5 The Court also notes that the statute of limitations does not run while a properly 6 || filed state habeas corpus petition is pending. 28 U.S.C. § 2244(d)(2); see Nino v. Galaza, 7 || 183 F.3d 1003, 1006 (9th Cir. 1999). But see Artuz v. Bennett, 531 U.S. 4, 8 (2000) 8 || (holding that ‘“‘an application is “properly filed’ when its delivery and acceptance [by the 9 || appropriate court officer for placement into the record] are in compliance with the 10 || applicable laws and rules governing filings.”). However, absent some other basis for 11 tolling, the statute of limitations does run while a federal habeas petition is pending. 12 || Duncan v. Walker, 533 U.S. 167, 181-82 (2001). 13 CONCLUSION 14 Accordingly, the Court DENIES the request to proceed in forma pauperis, and 15 || DISMISSES the case without prejudice. To have the case reopened, Petitioner must, no 16 || later than May 31, 2021: (1) either pay the filing fee or provide adequate proof of his 17 ||inability to pay and (2) file a First Amended Petition which cures the pleading 18 || deficiencies outlined in this Order. For Petitioner’s convenience, the Clerk of Court shall 19 || attach to this Order a blank In Forma Pauperis application form and a blank Petition for 20 || Writ of Habeas Corpus form. 21 IT IS SO ORDERED. 22 ||Dated: March 25, 2021 € □ 23 Hon. Cathy Ann Bencivengo 24 United States District Judge 25 26 27 28