1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 KOHEN DIALLO UHURU, Case No.: 3:22-cv-0489-CAB-AGS

12 Petitioner,

ORDER GRANTING APPLICATION

13 v. TO PROCEED IN FORMA PAUPERIS

AND DISMISSING PETITION

14 J. BENAVIDEZ, Warden, et al.,

WITHOUT PREJUDICE

15 Respondents. 16 17 Petitioner, a state prisoner proceeding pro se, has submitted a Petition for Writ of 18 Habeas Corpus pursuant to 28 U.S.C. § 2254, together with a request to proceed in forma 19 pauperis. ECF Nos. 1 & 2. 20 MOTION TO PROCEED IN FORMA PAUPERIS 21 Petitioner has no funds on account at the California correctional institution in 22 which he is presently confined. Petitioner cannot afford the $5.00 filing fee. Thus, the 23 Court GRANTS Petitioner’s application to proceed in forma pauperis and allows 24 Petitioner to prosecute the above-referenced action without being required to prepay fees 25 or costs and without being required to post security. The Clerk of the Court shall file the 26 Petition for Writ of Habeas Corpus without prepayment of the filing fee. 27 / / / 28 / / / 1 FAILURE TO ALLEGE EXHAUSTION OF STATE JUDICIAL REMEDIES 2 The Petition must be dismissed, however, because Petitioner has failed to allege 3 exhaustion of state judicial remedies. Habeas petitioners who wish to challenge either 4 their state court conviction or the length of their confinement in state prison, must first 5 exhaust state judicial remedies. 28 U.S.C. § 2254(b), (c); Granberry v. Greer, 481 U.S. 6 129, 133-34 (1987). To exhaust state judicial remedies, a California state prisoner must 7 present the California Supreme Court with a fair opportunity to rule on the merits of 8 every issue raised in his or her federal habeas petition. 28 U.S.C. § 2254(b), (c); 9 Granberry, 481 U.S. at 133–34. Moreover, to properly exhaust state court remedies a 10 petitioner must allege, in state court, how one or more of his or her federal rights have 11 been violated. The Supreme Court in Duncan v. Henry, 513 U.S. 364 (1995) reasoned: 12 “If state courts are to be given the opportunity to correct alleged violations of prisoners’ 13 federal rights, they must surely be alerted to the fact that the prisoners are asserting 14 claims under the United States Constitution.” Id. at 365-66 (emphasis added). For 15 example, “[i]f a habeas petitioner wishes to claim that an evidentiary ruling at a state 16 court trial denied him [or her] the due process of law guaranteed by the Fourteenth 17 Amendment, he [or she] must say so, not only in federal court, but in state court.” Id. at 18 366 (emphasis added). 19 Nowhere on the Petition does Petitioner allege that he raised his claims in the 20 California Supreme Court. In fact, he specifically indicates he did not seek such review. 21 See Pet., ECF No. 1 at 6–9. If Petitioner has raised his claims in the California Supreme 22 Court he must so specify. “The burden of proving that a claim has been exhausted lies 23 with the petitioner.” Matthews v. Evatt, 105 F.3d 907, 911 (4th Cir. 1997); see Breard v. 24 Pruett, 134 F.3d 615, 619 (4th Cir. 1998); Lambert v. Blackwell, 134 F.3d 506, 513 (3d 25 Cir. 1997); Oyler v. Allenbrand, 23 F.3d 292, 300 (10th Cir. 1994); Rust v. Zent, 17 F.3d 26 155, 160 (6th Cir. 1994). 27 Further, the Court cautions Petitioner that under the Antiterrorism and Effective 28 Death Penalty Act of 1996 (AEDPA) a one-year period of limitation shall apply to a 1 petition for a writ of habeas corpus by a person in custody pursuant to the judgment of a 2 State court. The limitation period shall run from the latest of: 3 (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; 4

5 (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 6 removed, if the applicant was prevented from filing by such State action; 7 (C) the date on which the constitutional right asserted was initially 8 recognized by the Supreme Court, if the right has been newly recognized by 9 the Supreme Court and made retroactively applicable to cases on collateral review; or 10

11 (D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence. 12

13 28 U.S.C. § 2244(d)(1)(A)-(D) (West 2006). 14 The statute of limitations does not run while a properly filed state habeas corpus 15 petition is pending. 28 U.S.C. § 2244(d)(2); see Nino v. Galaza, 183 F.3d 1003, 1006 (9th 16 Cir. 1999). But see Artuz v. Bennett, 531 U.S. 4, 8 (2000) (holding that “an application is 17 ‘properly filed’ when its delivery and acceptance [by the appropriate court officer for 18 placement into the record] are in compliance with the applicable laws and rules 19 governing filings.”). However, absent some other basis for tolling, the statute of 20 limitations does run while a federal habeas petition is pending. Duncan v. Walker, 533 21 U.S. 167, 181-82 (2001). 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 exhibits 24 annexed to it that the petitioner is not entitled to relief in the district court . . .” Rule 4, 28 25 U.S.C. foll. § 2254. Here, it appears plain from the Petition that Petitioner is not presently 26 entitled to federal habeas relief because he has not alleged exhaustion of state court 27 remedies. 28 / / / 1 FAILURE TO STATE COGNIZABLE CLAIM ON FEDERAL HABEAS 2 Furthermore, it appears Petitioner has failed to state a cognizable claim on federal 3 habeas. Petitioner lists various problems he claims he is facing in prison. Specifically, 4 Petitioner claims he is being discriminated against for having a mental illness and raises 5 several apparent claims alleging the prison is not permitting him to practice his religion 6 as a Nubian Hebrew Israelite.1 These claims are not cognizable on habeas because they 7 do not challenge the constitutional validity or duration of confinement. See 28 U.S.C. § 8 2254(a); Preiser v. Rodriguez, 411 U.S. 475, 500 (1973); Heck v. Humphrey, 512 U.S. 9 477, 480-85 (1994). “Section 2254 applies only to collateral attacks on state court 10 judgments.” McGuire v. Blubaum, 376 F. Supp. 284, 285 (D. Ariz. 1974). 11 In no way does Petitioner claim his state court conviction violates the Constitution 12 or laws or treaties of the United States. Rule 4 of the Rules Governing Section 2254 13 Cases provides for summary dismissal of a habeas petition “[i]f it plainly appears from 14 the face of the petition and any exhibits annexed to it that the petitioner is not entitled to 15 relief in the district court.” Rule 4, 28 U.S.C. foll. § 2254. Here, it is plain from the 16 petition that Petitioner is not presently entitled to federal habeas relief because he has not 17 alleged that the state court violated his federal rights. 18 Challenges to the fact or duration of confinement are brought by petition for a writ 19 of habeas corpus, pursuant to 28 U.S.C. § 2254; challenges to conditions of confinement 20 are brought pursuant to the Civil Rights Act, 42 U.S.C. § 1983. See Preiser, 411 U.S. at 21 22 23 1 Petitioner also makes reference to “ineffective assistance of counsel” but the claim is 24 convoluted and lacks supporting facts. Rule 2(c) of the Rules Governing § 2254 Cases (“Rule 2(c)”) requires that a petition “specify all the grounds for relief available to the petitioner” and 25 “state the facts supporting each ground.” See also Mayle v. Felix, 545 U.S. 644, 649 (2005) (“In 26 ordinary civil proceedings, the governing Rule, Rule 8 of the Federal Rules of Civil Procedure, requires only ‘a short and plain statement of the claim showing that the pleader is entitled to 27 relief.’ Rule 2(c) requires a more detailed statement.” (citation omitted)). Nonetheless, a habeas petition must be drafted in such a way that the court can reasonably identify and understand the 28 1 ||488—500. When a state prisoner is challenging the very fact or duration of his physical 2 ||imprisonment, and the relief he seeks is a determination that he is entitled to immediate 3 ||release or a speedier release from that imprisonment, his sole federal remedy is a writ of 4 ||habeas corpus. /d. at 500. On the other hand, a § 1983 action is a proper remedy for a 5 || state prisoner who is making a constitutional challenge to the conditions of his prison life, 6 || but not to the fact or length of his custody. Id. at 499; McIntosh v. United States Parole 7 || Comm’n, 115 F.3d 809, 811-12 (10th Cir. 1997). It appears that Petitioner seeks to 8 || challenge the conditions of his prison life, but not the fact or length of his custody.” Thus, 9 || Petitioner has not stated a cognizable claim pursuant to § 2254. 10 CONCLUSION 11 For the foregoing reasons, the Court GRANTS Petitioner’s Motion to Proceed In 12 || Forma Pauperis and DISMISSES the Petition without prejudice. 13 IT IS SO ORDERED. 14 || Dated: April 14, 2022 € 15 Hon. Cathy Ann Bencivengo 16 United States District Judge 17 18 19 20 21 22 23 24 25 26 27 28 Petitioner already has a petition for writ of habeas corpus, filed pursuant to 28 U.S.C. § 2254, pending before this Court in Case No. 3:21-cv-1058-CAB-JLB.