Bonilla v. Battaglia ( 2019 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 STEVEN WAYNE BONILLA, Case No.: 19cv1827 LAB (AHG) 12 Petitioner, ORDER DISMISSING CASE 13 v. WITHOUT PREJUDICE 14 ANTHONY BATTAGLIA, et al., 15 Respondents. 16 17 Petitioner, a state prisoner proceeding pro se, has filed a document this Court 18 construes as a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254.1 19 FAILURE TO SATSIFY FILING FEE REQUIREMENT 20 Petitioner has failed to pay the $5.00 filing fee and has failed to move to proceed in 21 forma pauperis. This Court cannot proceed until Petitioner has either paid the $5.00 filing 22 fee or qualified to proceed in forma pauperis. See Rule 3(a), 28 U.S.C. foll. § 2254. 23 24 25 1 Because Petitioner is a state prisoner seeking “immediate release” from state custody (see Pet. at 3, ECF No. 1), this Court liberally construes the document as a petition for 26 writ of habeas corpus under 28 U.S.C. § 2254. See Erickson v. Pardus, 551 U.S. 89, 94 27 (2007) (per curiam) (“A document filed pro se is ‘to be liberally construed,’ and a ‘pro se complaint, however inartfully pleaded, must be held to less stringent standards than 28 1 JURISDICTION AND VENUE 2 A petition for writ of habeas corpus may be filed in the United States District Court 3 of either the judicial district in which the petitioner is presently confined or the judicial 4 district in which he was convicted and sentenced. See 28 U.S.C. § 2241(d); Braden v. 30th 5 Judicial Circuit Court, 410 U.S. 484, 497 (1973). Petitioner is presently confined at San 6 Quentin State Prison, located in Marin County, which is within the jurisdictional 7 boundaries of the United States District Court for the Northern District of California. See 8 28 U.S.C. § 84(a). Although it is not entirely clear, Petitioner appears to be challenging a 9 conviction from Alameda County because he references Alameda County Superior Court 10 and claims that the prosecutor “committed fraud on the Superior Court.” (See Pet., ECF 11 No. 1 at 1.) Alameda County is also located within the jurisdictional boundaries of the 12 United States District Court for the Northern District of California. See 28 U.S.C. § 84(a). 13 Accordingly, habeas corpus jurisdiction appears to lie in the Northern District and not the 14 Southern District.2 15 FALIURE TO ALLEGE EXHAUSTION 16 Further, habeas petitioners who wish to challenge either their state court conviction 17 or the length of their confinement in state prison must first exhaust state judicial remedies. 18 28 U.S.C. § 2254(b), (c); Granberry v. Greer, 481 U.S. 129, 133-34 (1987). To exhaust 19 state judicial remedies, a California state prisoner must present the California Supreme 20 Court with a fair opportunity to rule on the merits of every issue raised in his or her federal 21 habeas petition. 28 U.S.C. § 2254(b), (c); Granberry, 481 U.S. at 133-34. Moreover, to 22 properly exhaust state court remedies a petitioner must allege, in state court, how one or 23 more of his or her federal rights have been violated. The Supreme Court in Duncan v. 24 25 26 2 The Court notes that it appears Petitioner has a petition for writ of habeas corpus 27 pursuant to 28 U.S.C. § 2254 challenging his Alameda County conviction and death sentence pending before the United States District Court for the Northern District of 28 1 Henry, 513 U.S. 364 (1995) reasoned: “If state courts are to be given the opportunity to 2 correct alleged violations of prisoners’ federal rights, they must surely be alerted to the fact 3 that the prisoners are asserting claims under the United States Constitution.” Id. at 365-66 4 (emphasis added). For example, “[i]f a habeas petitioner wishes to claim that an 5 evidentiary ruling at a state court trial denied him [or her] the due process of law guaranteed 6 by the Fourteenth Amendment, he [or she] must say so, not only in federal court, but in 7 state court.” Id. at 366 (emphasis added). 8 Nowhere on the Petition does Petitioner allege that he raised the claims presented in 9 his federal petition in the California Supreme Court. If Petitioner has raised his claims in 10 the California Supreme Court he must so specify. “The burden of proving that a claim has 11 been exhausted lies with the petitioner.” Matthews v. Evatt, 105 F.3d 907, 911 (4th Cir. 12 1997); see Breard v. Pruett, 134 F.3d 615, 619 (4th Cir. 1998); Lambert v. Blackwell, 134 13 F.3d 506, 513 (3d Cir. 1997); Oyler v. Allenbrand, 23 F.3d 292, 300 (10th Cir. 1994); Rust 14 v. Zent, 17 F.3d 155, 160 (6th Cir. 1994). 15 Further, the Court cautions Petitioner that under the Antiterrorism and Effective 16 Death Penalty Act of 1996 (AEDPA) a one-year period of limitation shall apply to a 17 petition for a writ of habeas corpus by a person in custody pursuant to the judgment of a 18 State court. The limitation period shall run from the latest of: 19 (A) the date on which the judgment became final by the conclusion of direct 20 review or the expiration of the time for seeking such review; 21 (B) the date on which the impediment to filing an application created by 22 State action in violation of the Constitution or laws of the United States is 23 removed, if the applicant was prevented from filing by such State action; 24 (C) the date on which the constitutional right asserted was initially 25 recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral 26 review; or 27 / / / 28 / / / 1 (D) the date on which the factual predicate of the claim or claims presented 7 could have been discovered through the exercise of due diligence. 3 U.S.C. § 2244(d)(1)(A)-(D) (West 2006). 4 The statute of limitations does not run while a properly filed state habeas corpus 5 || petition is pending. 28 U.S.C. § 2244(d)(2); see Nino v. Galaza, 183 F.3d 1003, 1006 (9th 6 1999). But see Artuz v. Bennett, 531 U.S. 4, 8 (2000) (holding that application is 7 || ‘properly filed’ when its delivery and acceptance [by the appropriate court officer for 8 || placement into the record] are in compliance with the applicable laws and rules governing 9 || filings.’’). However, absent some other basis for tolling, the statute of limitations does run 10 || while a federal habeas petition is pending. Duncan v. Walker, 533 U.S. 167, 181-82 (2001). 11 Rule 4 of the Rules Governing Section 2254 Cases provides for summary dismissal 12 || of a habeas petition “[i]f it plainly appears from the face of the petition and any exhibits 13 || annexed to it that the petitioner is not entitled to relief in the district court...” Rule 4, 28 14 || U.S.C. foll. § 2254. Here, it appears plain from the Petition that Petitioner is not presently 15 entitled to federal habeas relief because he has not alleged exhaustion of state court 16 || remedies. 17 CONCLUSION 18 Based on the foregoing, the Court DISMISSES this action without prejudice. 19 IT IS SO ORDERED. 20 || Dated: September 27, 2019 lam f Af. (byw 21 Hon. Larry Alan Burns 09 Chief United States District Judge 23 24 25 26 27 28