Martinez v. The People of the State of California

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 JOAQUIN M. MARTINEZ, Case No. 21-CV-2106 JLS (BGS)

12 Plaintiff, ORDER (1) GRANTING MOTION 13 v. TO PROCEED IN FORMA PAUPERIS; AND (2) DISMISSING 14 ALLEN, Warden, et al., CASE WITHOUT PREJUDICE AND 15 Defendants. WITH LEAVE TO AMEND 16 17 (ECF No. 6) 18 19 On December 17, 2021, Petitioner Joaquin Martinez, a state prisoner proceeding pro 20 se, filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 in this Court. 21 ECF No. 1. The Court dismissed the action without prejudice and with leave to amend on 22 January 2, 2022, because Petitioner had failed to either pay the filing fee or file a motion 23 to proceed in forma pauperis and because he had failed to name a proper respondent. ECF 24 No. 3. The Court granted Petitioner until March 7, 2022, to either pay the $5.00 filing fee 25 or submit adequate proof of his inability to pay the fee and file a First Amended Petition 26 that cured the pleading deficiencies outlined in the Court’s Order. On May 23, 2022, 27 Petitioner filed an Amended Petition (“Am. Pet.,” ECF No. 5) and a Motion to Proceed in 28 Forma Pauperis (ECF No. 6). 1 MOTION TO PROCEED IN FORMA PAUPERIS 2 The Certificate of Funds in Prisoner’s Account submitted by Petitioner shows the 3 average deposits for the last six months has been $0.00, the average balance in Petitioner’s 4 account for the last six months has been $0.00, and he has $0.00 currently in his account. 5 ECF NO. 6 at 12. Petitioner cannot afford the $5.00 filing fee. Thus, the Court GRANTS 6 Petitioner’s application to proceed in forma pauperis. The Clerk of the Court shall file the 7 Petition for Writ of Habeas Corpus without prepayment of the filing fee. 8 FAILURE TO ALLEGE EXHAUSTION OF STATE JUDICIAL REMEDIES 9 Habeas petitioners who wish to challenge either their state court conviction or the 10 length of their confinement in state prison, must first exhaust state judicial remedies. 28 11 U.S.C. § 2254(b), (c); Granberry v. Greer, 481 U.S. 129, 133–34 (1987). To exhaust state 12 judicial remedies, a California state prisoner must present the California Supreme Court 13 with a fair opportunity to rule on the merits of every issue raised in his or her federal habeas 14 petition. 28 U.S.C. § 2254(b), (c); Granberry, 481 U.S. at 133–34. Moreover, to properly 15 exhaust state court remedies a petitioner must allege, in state court, how one or more of his 16 or her federal rights have been violated. The Supreme Court in Duncan v. Henry reasoned: 17 “If state courts are to be given the opportunity to correct alleged violations of prisoners’ 18 federal rights, they must surely be alerted to the fact that the prisoners are asserting claims 19 under the United States Constitution.” 513 U.S. 364, 365–66 (1995). For example, “[i]f a 20 habeas petitioner wishes to claim that an evidentiary ruling at a state court trial denied him 21 [or her] the due process of law guaranteed by the Fourteenth Amendment, he [or she] must 22 say so, not only in federal court, but in state court.” Id. at 366. 23 Nowhere in the Petition does Petitioner allege that he raised his claims in the 24 California Supreme Court. In fact, he specifically indicates he did not seek such review. 25 (See Am. Pet. at 6–9.) If Petitioner has raised his claims in the California Supreme Court, 26 he must so specify. “The burden of proving that a claim has been exhausted lies with the 27 petitioner.” Matthews v. Evatt, 105 F.3d 907, 911 (4th Cir. 1997); see also Date v. Schriro, 28 /// 1 619 F. Supp. 2d 736, 761–62 (D. Ariz. 2008); Stanley v. Ayers, 2017 WL 2224815, at *3 2 (N.D. Cal. May 22, 2017) (citing Lambert v. Blackwell, 134 F.3d 506, 513 (3d Cir. 1997)). 3 Further, the Court cautions Petitioner that under the Antiterrorism and Effective 4 Death Penalty Act of 1996 (AEDPA) a one-year period of limitation shall apply to a 5 petition for a writ of habeas corpus by a person in custody pursuant to the judgment of a 6 State court. The limitation period shall run from the latest of: 7 (A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for 8 seeking such review; 9 (B) the date on which the impediment to filing an application 10 created by State action in violation of the Constitution or laws of 11 the United States is removed, if the applicant was prevented from filing by such State action; 12 13 (C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been 14 newly recognized by the Supreme Court and made retroactively 15 applicable to cases on collateral review; or 16 (D) the date on which the factual predicate of the claim or claims 17 presented could have been discovered through the exercise of due diligence. 18 19 28 U.S.C. § 2244(d)(1)(A)–(D) (West 2006). 20 The statute of limitations does not run while a properly filed state habeas corpus 21 petition is pending. 28 U.S.C. § 2244(d)(2); see Nino v. Galaza, 183 F.3d 1003, 1006 (9th 22 Cir. 1999). But see Artuz v. Bennett, 531 U.S. 4, 8 (2000) (holding that “an application is 23 ‘properly filed’ when its delivery and acceptance [by the appropriate court officer for 24 placement into the record] are in compliance with the applicable laws and rules governing 25 filings.”). However, absent some other basis for tolling, the statute of limitations does run 26 while a federal habeas petition is pending. Duncan v. Walker, 533 U.S. 167, 181–82 27 (2001). 28 /// 1 CONCLUSION 2 For the foregoing reasons, the Court GRANTS Petitioner’s Motion to Proceed in 3 Forma Pauperis (ECF No. 6) and DISMISSES this case without prejudice and with leave 4 ||to amend. If Petitioner wishes to proceed with this case, he must, no later than August 1, 5 2022, file a Second Amended Petition that cures the pleading deficiencies outlined in this 6 ||Order. The Clerk of the Court will mail Petitioner a blank Second Amended Petition 7 || Pursuant to 28 U.S.C. § 2254 form together with a copy of this Order. 8 IT IS SO ORDERED. 9 ||Dated: June 10, 2022 tt 10 pee Janis L. Sammartino ll United States District Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28