1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 MICHAEL ANDREW ROCKHOLD, Case No. 21-cv-835-MMA (MSB)

12 Petitioner,

ORDER DENYING MOTION TO

13 v. PROCEED IN FORMA PAUPERS,

DISMISSING CASE WITHOUT

14 WILLIAM GORE, et al.,

PREJUDICE AND WITH LEAVE TO

15 Respondents. AMEND, AND DIRECTING CLERK

TO UPDATE PETITIONER’S

16

ADDRESS

17 [Doc. No. 5] 18 19 20 On April 28, 2021, Michael Andrew Rockhold (“Petitioner”), a state prisoner 21 proceeding pro se, filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. 22 Doc. No. 1 (“Petition”). On May 7, 2021, the Court dismissed the case without prejudice 23 and with leave to amend because Petitioner had failed to: (1) either pay the $5.00 filing 24 fee or move to proceed in forma pauperis; and (2) allege a federal constitutional 25 violation. Doc. No. 2. The Court granted Petitioner until July 13, 2021, to either pay the 26 $5.00 filing fee or submit adequate proof of his inability to pay the fee and file a First 27 Amended Petition that cured the pleading deficiencies outlined in the Court’s May 7, 28 2021 Order. Id. 1 On June 4, 2021, the Court received a document entitled “Motion and Order to 2 Vacate Judgment,” which the Court construed as a First Amended Petition, see Doc. 3 Nos. 4–5 (“FAP”), and on June 7, 2021, Petitioner filed a motion to proceed in forma 4 pauperis (“IFP”), see Doc. No. 3. The FAP was officially filed on June 11, 2021. Doc. 5 No. 5. That same day, the Court denied Petitioner’s motion to proceed IFP and dismissed 6 the case without prejudice and with leave to amend because Petitioner had failed to state 7 a cognizable federal claim and to allege exhaustion of his state judicial remedies. Doc. 8 No. 6. 9 Petitioner listed George Bailey Detention Center (“GBDC”), located at 446 Alta 10 Road in San Diego, California, as his place of incarceration in his original Petition and on 11 the FAP. The Court takes judicial notice of the fact, however, that according to the San 12 Diego Sheriff Department’s website, Petitioner is now incarcerated at the Vista Detention 13 Center, located at 325 South Melrose Drive, Vista, California. Accordingly, because 14 Petitioner may not have received the Court’s June 11, 2021, Order denying his motion to 15 proceed in forma pauperis and dismissing the petition, the Court hereby reissues that 16 Order and grants Petitioner additional time in which to comply with it. 17 MOTION TO PROCEED IN FORMA PAUPERIS 18 Petitioner has not provided the Court with sufficient information to determine his 19 financial status. A request to proceed IFP made by a state prisoner must include a signed 20 certificate from the warden or other appropriate officer showing the amount of money or 21 securities Petitioner has on account in the institution. Rule 3(a)(2), Rules Governing 22 Section 2254 Cases; see also CivLR 3.2. Petitioner has failed to provide the Court with 23 the required Prison Certificate. Accordingly, the Court DENIES Petitioner’s request to 24 proceed IFP. 25 FAILURE TO STATE A COGNIZABLE FEDERAL CLAIM 26 Additionally, Petitioner has again failed to allege that his state court conviction or 27 sentence violates the Constitution of the United States. Title 28, section 2254(a) of the 28 1 United States Code, sets forth the following scope of review for federal habeas corpus 2 claims: 3 4 The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an application for a writ of habeas corpus on behalf of a person in 5 custody pursuant to the judgment of a State court only on the ground that he 6 is in custody in violation of the Constitution or laws or treaties of the United States. 7

8 28 U.S.C. § 2254(a); see Hernandez v. Ylst, 930 F.2d 714, 719 (9th Cir. 1991). Thus, to 9 present a cognizable federal habeas corpus claim under § 2254, a state prisoner must 10 allege both that he is in custody pursuant to a “judgment of a State court,” and that he is 11 in custody in “violation of the Constitution or laws or treaties of the United States.” 12 28 U.S.C. § 2254(a). 13 While Petitioner has alleged that his trial counsel was ineffective and that “[the] 14 court and prosecutor failed to provided exculpatory evidence of the securities and 15 proceeds,” he has not presented any facts to support the allegation and the remainder of 16 his Petition consists of several pages of incomprehensible allegations. Doc. No. 5 at 2, 4. 17 Rule 2(c) of the Rules Governing Section 2254 Cases states that the petition “shall set 18 forth in summary form the facts supporting each of the grounds . . . specified [in the 19 petition].” Rule 2(c), Rules Governing Section 2254 Cases; see also Boehme v. Maxwell, 20 423 F.2d 1056, 1058 (9th Cir. 1970) (affirming the trial court’s dismissal of federal 21 habeas proceeding where petitioner made conclusory allegations instead of factual 22 allegations showing that he was entitled to relief). While courts should liberally interpret 23 pro se pleadings with leniency and understanding, this should not place on the reviewing 24 court the entire onus of ferreting out grounds for relief. See Zichko v. Idaho, 247 F.3d 25 1015, 1020 (9th Cir. 2001). In order to satisfy Rule 2(c), Petitioner must point to a “real 26 possibility of constitutional error.” Blackledge v. Allison, 431 U.S. 63, 75 n.7 (1977) 27 (quoting Advisory Committee Note to Rule 4, Rules Governing Habeas Corpus Cases). 28 Facts must be stated in the petition with sufficient detail to enable the Court to determine, 1 from the face of the petition, whether further habeas corpus review is warranted. Adams 2 v. Armontrout, 897 F.2d 332, 334 (8th Cir. 1990). 3 This Court would have to engage in a tenuous analysis in order to attempt to 4 identify and make sense of the FAP. Moreover, the lack of factual support prevents 5 Respondents from being able to assert appropriate objections and defenses. Accordingly, 6 the Court DISMISSES the FAP with leave to amend. Should Petitioner file a Second 7 Amended Petition, he is advised to clearly and succinctly state all grounds for relief using 8 the Second Amended Petition form sent to Petitioner with this Order. 9 FAILURE TO ALLEGE EXHAUSTION OF STATE JUDICIAL REMEDIES 10 Further, the Court notes that Petitioner cannot simply amend his Petition to state a 11 federal habeas claim and then refile the amended petition in this case. He must exhaust 12 state judicial remedies before bringing his claims via a federal habeas petition. State 13 prisoners who wish to challenge their state court conviction must first exhaust state 14 judicial remedies. 28 U.S.C. § 2254(b)–(c); Granberry v. Greer, 481 U.S. 129, 133–34 15 (1987). To exhaust state judicial remedies, a California state prisoner must present the 16 California Supreme Court with a fair opportunity to rule on the merits of every issue 17 raised in his or her federal habeas petition. See 28 U.S.C. § 2254(b)–(c); Granberry, 481 18 U.S. at 133–34. Moreover, to properly exhaust state court judicial remedies, a petitioner 19 must allege, in state court, how one or more of his or her federal rights have been 20 violated. The Supreme Court in Duncan v. Henry reasoned: “If state courts are to be 21 given the opportunity to correct alleged violations of prisoners’ federal rights, they must 22 surely be alerted to the fact that the prisoners are asserting claims under the United States 23 Constitution.” 513 U.S. 364, 365–66 (1995). For example, “[i]f a habeas petitioner 24 wishes to claim that an evidentiary ruling at a state court trial denied him the due process 25 of law guaranteed by the Fourteenth Amendment, he must say so, not only in federal 26 court, but in state court.” Id. 27 28 1 STATUTE OF LIMITATIONS 2 Additionally, the Court cautions Petitioner that under the Antiterrorism and 3 Effective Death Penalty Act of 1996, a one-year period of limitation shall apply to a 4 petition for a writ of habeas corpus by a person in custody pursuant to the judgment of a 5 State court. The limitation period shall run from the latest of: 6 7 (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; 8

9 (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 10 removed, if the applicant was prevented from filing by such State action; 11 (C) the date on which the constitutional right asserted was initially 12 recognized by the Supreme Court, if the right has been newly recognized by 13 the Supreme Court and made retroactively applicable to cases on collateral review; or 14

15 (D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence. 16

17 28 U.S.C. § 2244(d)(1)(A)–(D). 18 The Court also notes that the statute of limitations does not run while a properly 19 filed state habeas corpus petition is pending. 28 U.S.C. § 2244(d)(2); see Nino v. Galaza, 20 183 F.3d 1003, 1006 (9th Cir. 1999); but see Artuz v. Bennett, 531 U.S. 4, 8 (2000) 21 (holding that “an application is ‘properly filed’ when its delivery and acceptance [by the 22 appropriate court officer for placement into the record] are in compliance with the 23 applicable laws and rules governing filings”). However, absent some other basis for 24 tolling, the statute of limitations does run while a federal habeas petition is pending. 25 Duncan v. Walker, 533 U.S. 167, 181–82 (2001). 26 CONCLUSION 27 For the foregoing reasons, the Court DENIES Petitioner’s motion to proceed IFP 28 and DISMISSES this case without prejudice and with leave to amend. If Petitioner 1 || wishes to proceed with this case, he must, no later than March 14, 2022: (1) pay the 2 || $5.00 filing fee or submit adequate proof of his inability to pay the fee; and (2) file a 3 || Second Amended Petition that cures the pleading deficiencies outlined in this Order. The 4 || Court DIRECTS the Clerk of Court to mail Petitioner a blank motion to proceed in 5 || forma pauperis form and a blank Second Amended Petition form together with a copy of 6 ||this Order. The Court further DIRECTS the Clerk of Court to change Petitioner’s 7 address in the Court’s docket to reflect Petitioner’s current place of incarceration. 8 IT IS SO ORDERED. 9 || Dated: January 10, 2022 10

12 United States District Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28