1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 LESTER KENJI RILEY, Case No.: 3:21-cv-01805-TWR (AGS) 12 Petitioner,

ORDER:

13 v. (1) DENYING MOTION TO 14 PLAINTIFFS OR D.A.,

PROCEED IN FORMA PAUPERIS

15 Respondents. [ECF No. 2]; 16 (2) DISMISSING CASE WITHOUT 17 PREJUDICE AND WITH LEAVE TO

AMEND

18 19 Petitioner, a state prisoner proceeding pro se, has filed a Petition for Writ of Habeas 20 Corpus pursuant to 28 U.S.C. § 2254, together with a request to proceed in forma pauperis 21 pursuant to 28 U.S.C. § 1915(a). 22 MOTION TO PROCEED IN FORMA PAUPERIS 23 The request to proceed in forma pauperis is denied because Petitioner has not 24 provided the Court with sufficient information to determine Petitioner’s financial status. 25 A request to proceed in forma pauperis made by a state prisoner must include a certificate 26 from the warden or other appropriate officer showing the amount of money or securities 27 Petitioner has on account in the institution. Rule 3(a)(2), 28 U.S.C. § 2254; Local Rule 28 3.2. Petitioner has failed to provide the Court with the required Prison Certificate. 1 FAILURE TO NAME PROPER RESPONDENT 2 Petitioner has failed to name a proper respondent. On federal habeas, a state prisoner 3 must name the state officer having custody of him as the respondent. Ortiz-Sandoval v. 4 Gomez, 81 F.3d 891, 894 (9th Cir. 1996) (citing Rule 2(a), 28 U.S.C. foll. § 2254). Federal 5 courts lack personal jurisdiction when a habeas petition fails to name a proper respondent. 6 See id. 7 The warden is the typical respondent. However, “the rules following section 2254 8 do not specify the warden.” Id. “[T]he ‘state officer having custody’ may be ‘either the 9 warden of the institution in which the petitioner is incarcerated . . . or the chief officer in 10 charge of state penal institutions.’” Id. (quoting Rule 2(a), 28 U.S.C. foll. § 2254 advisory 11 committee’s note). If “a petitioner is in custody due to the state action he is challenging, 12 ‘[t]he named respondent shall be the state officer who has official custody of the petitioner 13 (for example, the warden of the prison).’” Id. (quoting Rule 2, 28 U.S.C. foll. § 2254 14 advisory committee’s note). 15 A longstanding rule in the Ninth Circuit holds “that a petitioner may not seek [a writ 16 of] habeas corpus against the State under . . . [whose] authority . . . the petitioner is in 17 custody. The actual person who is [the] custodian [of the petitioner] must be the 18 respondent.” Ashley v. Washington, 394 F.2d 125, 126 (9th Cir. 1968). This requirement 19 exists because a writ of habeas corpus acts upon the custodian of the state prisoner, the 20 person who will produce “the body” if directed to do so by the Court. “Both the warden 21 of a California prison and the Director of Corrections for California have the power to 22 produce the prisoner.” Ortiz-Sandoval, 81 F.3d at 895. 23 Here, Petitioner has incorrectly named “Plaintiffs or D.A.,” as Respondents. In order 24 for this Court to entertain the Petition filed in this action, Petitioner must name the warden 25 in charge of the state correctional facility in which Petitioner is presently confined or the 26 Director of the California Department of Corrections. Brittingham v. United States, 982 27 F.2d 378, 379 (9th Cir. 1992) (per curiam). 28 / / / 1 FAILURE TO STATE A COGNIZABLE FEDERAL 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 for 6 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 corpus in behalf of a person 8 in custody pursuant to the judgment of a State court only on the ground that 9 he is in custody in violation of the Constitution or laws or treaties of the United States. 10 11 28 U.S.C. § 2254(a) (emphasis added); Hernandez v. Ylst, 930 F.2d 714, 719 (9th Cir. 12 1991). 13 Thus, to present a cognizable federal habeas corpus claim under § 2254, a state 14 prisoner must allege both that he is in custody pursuant to a “judgment of a State court,” 15 and that he is in custody in “violation of the Constitution or laws or treaties of the United 16 States.” See 28 U.S.C. § 2254(a). 17 In his Petition, Petitioner recounts the facts of the crimes of which he was convicted 18 and disputes the testimony given at trial. (Pet., ECF No. 1 at 6–9.) He asks to be released 19 to see his family, and for the great bodily injury enhancement charges of which he was 20 convicted to be dropped. (Id. at 6.) He also claims that he was acting in self-defense. (Id. 21 at 6–9.) In no way does Petitioner claim he is “in custody in violation of the Constitution 22 or laws or treaties of the United States.” 28 U.S.C. § 2254. 23 Furthermore, the Court notes that Petitioner cannot simply amend his Petition to 24 state a federal habeas claim and then refile the amended petition in this case. He must 25 exhaust state judicial remedies before bringing his claims via federal habeas. State 26 prisoners who wish to challenge their state court conviction must first exhaust state judicial 27 remedies. 28 U.S.C. § 2254(b), (c); Granberry v. Greer, 481 U.S. 129, 133–34 (1987). To 28 exhaust state judicial remedies, a California state prisoner must present the California 1 Supreme Court with a fair opportunity to rule on the merits of every issue raised in his or 2 her federal habeas petition. See 28 U.S.C. § 2254(b), (c); Granberry, 481 U.S. at 133–34. 3 Moreover, to properly exhaust state court judicial remedies a petitioner must allege, in state 4 court, how one or more of his or her federal rights have been violated. The Supreme Court 5 in Duncan v. Henry, 513 U.S. 364 (1995) reasoned: “If state courts are to be given the 6 opportunity to correct alleged violations of prisoners’ federal rights, they must surely be 7 alerted to the fact that the prisoners are asserting claims under the United States 8 Constitution.” Id. at 365-66. For example, “[i]f a habeas petitioner wishes to claim that 9 an evidentiary ruling at a state court trial denied him the due process of law guaranteed by 10 the Fourteenth Amendment, he must say so, not only in federal court, but in state court.” 11 Id. 12 Additionally, the Court cautions Petitioner that under the Antiterrorism and 13 Effective Death Penalty Act of 1996 (Act), signed into law on April 24, 1996, a one-year 14 period of limitation applies to a petition for a writ of habeas corpus by a person in custody 15 pursuant to the judgment of a State court. The limitation period runs from the latest of: 16 (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; 17 18 (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, 19 if the applicant was prevented from filing by such State action; 20 (C) the date on which the constitutional right asserted was initially recognized 21 by the Supreme Court, if the right has been newly recognized by the Supreme 22 Court and made retroactively applicable to cases on collateral review; or 23 (D) the date on which the factual predicate of the claim or claims presented 24 could have been discovered through the exercise of due diligence. 25 28 U.S.C. § 2244(d)(1)(A)–(D). 26 The Court also notes that the statute of limitations does not run while a properly filed 27 state habeas corpus petition is pending. 28 U.S.C. § 2244(d)(2); see Nino v. Galaza, 183 28 F.3d 1003, 1006 (9th Cir. 1999), cert. denied, 529 U.S. 1104 (2000); but see Artuz v. 1 || Bennett, 531 U.S. 4, 8 (2000) (holding that “an application is “properly filed’ when its 2 || delivery and acceptance [by the appropriate court officer for placement into the record] are 3 compliance with the applicable laws and rules governing filings.”). However, absent 4 ||some other basis for tolling, the statute of limitations does run while a federal habeas 5 || petition is pending. Duncan v. Walker, 533 U.S. 167, 181-82 (2001). 6 CONCLUSION 7 For the foregoing reasons, the Court DENIES Petitioner’s motion to proceed in 8 || forma pauperis [ECF No. 2] and DISMISSES the Petition without prejudice and with 9 leave to amend. To have this case reopened, Petitioner must, no later than January 2, 2022: 10 |/(1) pay the $5.00 filing fee or submit adequate proof of his inability to pay the fee and (2) 11 || file a First Amended Petition that cures the pleading deficiencies outlined in this Order. 12 || The Clerk of Court will mail Petitioner a blank motion to proceed in forma pauperis 13 || form and a blank First Amended Petition (28 U.S.C. § 2254) form together with a copy 14 || of this Order. 15 IT IS SO ORDERED. 16 Dated: October 29, 2021 —— (2 7 lad \& (re 18 Honorable Todd W. Robinson 19 United States District Judge 20 21 22 23 24 25 26 27 28