1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 SUTEN BLACKGOLD, Case No.: 21-cv-1801-MMA (JLB)

12 Petitioner,

ORDER GRANTING MOTION TO

13 v. PROCEED IN FORMA PAUPERIS;

14 RAYMOND MADDEN, et al., [Doc. No. 2] 15 Respondents.

AND DISMISSING CASE WITHOUT

16

PREJUDICE

17

18 19 Suten Blackgold (“Petitioner”), a state prisoner proceeding pro se, has filed a 20 Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254, challenging a 2020 21 conviction for battery on a peace officer with a weapon, for which Petitioner was 22 sentenced to 11 months and a loss of 150 days of good time credit. See Doc. No. 1. 23 Petitioner has also filed a motion to proceed in forma pauperis. See Doc. No. 2. For the 24 reasons discussed below, the Court GRANTS Petitioner’s motion to proceed in forma 25 pauperis and DISMISSES the habeas action without prejudice. 26 MOTION TO PROCEED IN FORMA PAUPERIS 27 Petitioner has filed a motion to proceed in forma pauperis. See Doc. No. 2. 28 Petitioner has $0.00 on account at the correctional institution where Petitioner is 1 presently confined, see id. at 5–6, 8, and cannot afford the $5.00 filing fee. Therefore, 2 the Court GRANTS Petitioner’s motion to proceed in forma pauperis and allows 3 Petitioner to prosecute the above-referenced action without being required to prepay fees 4 or costs and without being required to post security. The Court DIRECTS the Clerk of 5 Court to file the Petition for Writ of Habeas Corpus without prepayment of the filing fee. 6 FAILURE TO ALLEGE EXHAUSTION OF STATE JUDICIAL REMEDIES 7 Habeas petitioners who wish to challenge either their state court conviction or the 8 length of their confinement in state prison, must first exhaust state judicial remedies. See 9 28 U.S.C. § 2254(b), (c); Granberry v. Greer, 481 U.S. 129, 133-34 (1987). To exhaust 10 state judicial remedies, a California state prisoner must present the California Supreme 11 Court with a fair opportunity to rule on the merits of every issue raised in his or her 12 federal habeas petition. See 28 U.S.C. § 2254(b), (c); Granberry, 481 U.S. at 133–34. 13 Ordinarily, to satisfy the exhaustion requirement, a petitioner “‘must fairly present[]’ his 14 [or her] federal claim to the highest state court with jurisdiction to consider it, or . . . 15 demonstrate[] that no state remedy remains available.” Johnson v. Zenon, 88 F.3d 828, 16 829 (9th Cir. 1996) (citations omitted). Moreover, to properly exhaust state court 17 remedies a petitioner must allege, in state court, how one or more of his or her federal 18 rights have been violated. For example, “[i]f a habeas petitioner wishes to claim that an 19 evidentiary ruling at a state court trial denied him [or her] the due process of law 20 guaranteed by the Fourteenth Amendment, he [or she] must say so, not only in federal 21 court, but in state court.” Duncan v. Henry, 513 U.S. 364, 365–66 (1995). 22 Rule 4 of the Rules Governing Section 2254 Cases provides for summary dismissal 23 of a habeas petition “[i]f it plainly appears from the face of the petition and any attached 24 exhibits that the petitioner is not entitled to relief in the district court . . .” Rule 4, 28 25 U.S.C. foll. § 2254. Here, Petitioner raises two enumerated grounds for relief in the 26 instant Petition and indicates neither ground has been raised in the California Supreme 27 Court. See Doc. No. 1 at 6, 8. Thus, it appears plain from the Petition that Petitioner is 28 not presently entitled to federal habeas relief. See Rasberry v. Garcia, 448 F.3d 1150, 1 1154 (9th Cir. 2006) (“Once a district court determines that a habeas petition contains 2 only unexhausted claims, it need not inquire further into the petitioner’s intentions. 3 Instead, it may simply dismiss the habeas petition for failure to exhaust.”) (citing Jiminez 4 v. Rice, 276 F.3d 478, 481 (9th Cir. 2001)). 5 The Court additionally cautions Petitioner that under the Antiterrorism and 6 Effective Death Penalty Act of 1996 (“AEDPA”) a one-year period of limitation shall 7 apply to a petition for a writ of habeas corpus by a person in custody pursuant to the 8 judgment of a State court. The limitation period shall run from the latest of: 9 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 removed, 13 if the applicant was prevented from filing by such State action; 14 (C) the date on which the constitutional right asserted was initially recognized 15 by the Supreme Court, if the right has been newly recognized by the Supreme 16 Court and made retroactively applicable to cases on collateral review; or

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

19 20 28 U.S.C. § 2244(d)(1)(A)–(D). 21 The statute of limitations does not run while a properly filed state habeas corpus 22 petition is pending. See 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. See Duncan v. Walker, 28 533 U.S. 167, 181–82 (2001).

CONCLUSION

2 For the foregoing reasons, the Court GRANTS Petitioner’s motion to proceed in 3 || forma pauperis and DIRECTS the Clerk of Court to file the Petition without prepayment 4 the filing fee. The Court further DISMISSES the Petition without prejudice. If 5 || Petitioner wishes to proceed with this habeas action, Petitioner must file a First Amended 6 || Petition that cures the pleading deficiencies outlined in this Order on or before 7 ||December 27, 2021. The Court therefore DIRECTS the Clerk of Court to mail 8 || Petitioner a blank Amended Petition for Writ of Habeas Corpus pursuant to 28 U.S.C 9 || § 2254 together with a copy of this Order. 10 IT IS SO ORDERED. 11 Dated: October 26, 2021 12 BWMaituh lM Lliphlr 13 HON. MICHAEL M. ANELLO 14 United States District Judge 15 16 17 18 19 20 21 22 23 24 25 26 27 28