Tequida v. Spearman ( 2019 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 RAYMOND ENRIQUE TEQUIDA, Case No.: 19cv2319 GPC (LL) 12 Petitioner, ORDER DENYING IN FORMA 13 v. PAUPERIS APPLICATION AND DISMISSING CASE WITHOUT 14 M.E. SPEARMAN, Warden, PREJUDICE 15 Respondent. 16 17 Petitioner, a state prisoner proceeding pro se, has not paid the $5.00 filing fee and 18 has filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254, together 19 with a request to proceed in forma pauperis pursuant to 28 U.S.C. § 1915(a). 20 REQUEST TO PROCEED IN FORMA PAUPERIS 21 The request to proceed in forma pauperis is denied because Petitioner has not 22 provided the Court with sufficient information to determine Petitioner’s financial status. 23 A request to proceed in forma pauperis made by a state prisoner must include a certificate 24 from the warden or other appropriate officer showing the amount of money or securities 25 Petitioner has on account in the institution. Rule 3(a)(2), 28 U.S.C. foll. § 2254; Local 26 Rule 3.2. Petitioner has failed to provide the Court with a required Prison Certificate 27 signed by an authorized prison official. Accordingly, the Court DENIES the request to 28 proceed in forma pauperis. 1 FAIULRE TO STATE A COGNIZABLE FEDERAL CLAIM 2 Additionally, the Petition must be dismissed because Petitioner has failed to allege 3 that his state court conviction or sentence violates the Constitution of the United States. 4 Title 28, United States Code, § 2254(a), sets forth the following scope of review for 5 federal habeas corpus claims: 6 The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an application for a writ of habeas 7 corpus in behalf of a person in custody pursuant to the judgment 8 of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United 9 States. 10 11 28 U.S.C. § 2254(a) (emphasis added). See Hernandez v. Ylst, 930 F.2d 714, 719 (9th Cir. 12 1991); Mannhalt v. Reed, 847 F.2d 576, 579 (9th Cir. 1988); Kealohapauole v. Shimoda, 13 800 F.2d 1463, 1464-65 (9th Cir. 1986). Thus, to present a cognizable federal habeas 14 corpus claim under § 2254, a state prisoner must allege both that he is in custody pursuant 15 to a “judgment of a State court,” and that he is in custody in “violation of the Constitution 16 or laws or treaties of the United States.” See 28 U.S.C. § 2254(a). 17 Here, Petitioner contends he is entitled to resentencing under newly enacted 18 California laws regarding gun enhancements and prior serious felony enhancements 19 passed as California Senate Bill Nos. 620 and 1393, respectively. (Pet. at 6-7, ECF No. 20 1.) His claims, as presented, reference only California state law. In no way does 21 Petitioner claim he is “in custody in violation of the Constitution or laws or treaties of the 22 United States.” 28 U.S.C. § 2254. 23 Further, the Court notes that Petitioner cannot simply amend his Petition to state a 24 federal habeas claim and then refile the amended petition in this case. He must exhaust 25 state judicial remedies before bringing his claims via federal habeas. State prisoners who 26 wish to challenge their state court conviction must first exhaust state judicial remedies. 27 28 U.S.C. § 2254(b), (c); Granberry v. Greer, 481 U.S. 129, 133-34 (1987). To exhaust 28 state judicial remedies, a California state prisoner must present the California Supreme 1 Court with a fair opportunity to rule on the merits of every issue raised in his or her 2 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 4 state court, how one or more of his or her federal rights have been violated. The Supreme 5 Court in Duncan v. Henry, 513 U.S. 364 (1995) reasoned: “If state courts are to be given 6 the opportunity to correct alleged violations of prisoners’ federal rights, they must surely 7 be alerted to the fact that the prisoners are asserting claims under the United States 8 Constitution.” Id. at 365-66 (emphasis added). For example, “[i]f a habeas petitioner 9 wishes to claim that an evidentiary ruling at a state court trial denied him the due process 10 of law guaranteed by the Fourteenth Amendment, he must say so, not only in federal 11 court, but in state court.” Id. (emphasis added). 12 Additionally, the Court cautions Petitioner that under the Antiterrorism and 13 Effective Death Penalty Act of 1996, a one-year period of limitation shall apply to a petition 14 for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. 15 The limitation period shall run 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 17 seeking such review; 18 (B) the date on which the impediment to filing an 19 application created by State action in violation of the 20 Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action; 21 22 (C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been 23 newly recognized by the Supreme Court and made retroactively 24 applicable to cases on collateral review; or 25 (D) the date on which the factual predicate of the claim or 26 claims presented could have been discovered through the exercise of due diligence. 27 28 28 U.S.C. § 2244(d)(1)(A)-(D) (West Supp. 2002). 1 The Court also notes that the statute of limitations does not run while a properly filed 2 ||state habeas corpus petition is pending. 28 U.S.C. § 2244(d)(2); see Nino v. Galaza, 183 3 || F.3d 1003, 1006 (9th Cir. 1999). But see Artuz v. Bennett, 531 U.S. 4, 8 (2000) (holding 4 || that “an application is ‘properly filed’ when its delivery and acceptance [by the appropriate 5 || court officer for placement into the record] are in compliance with the applicable laws and 6 ||rules governing filings.”). However, absent some other basis for tolling, the statute of 7 || limitations does run while a federal habeas petition is pending. Duncan v. Walker, 533 8 167, 181-82 (2001). 9 CONCLUSION 10 Based on the foregoing, the Court DENIES Petitioner’s request to proceed in 11 || forma pauperis and DISMISSES this action without prejudice because Petitioner has 12 || failed to state a cognizable federal claim. To have this case reopened, Petitioner must, no 13 ||later than February 12, 2020, (1) either pay the filing fee or provide adequate proof of 14 inability to pay and (2) file a First Amended Petition that cures the pleading 15 || deficiency set forth above. For Petitioner’s convenience, the Clerk of Court shall include 16 || a blank in forma pauperis application and a blank form Petition with this Order. 17 IT IS SO ORDERED. 18 |}Dated: December 16, 2019 = 20 United States District Judge 21 22 23 24 25 26 27 28