Emert 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 ROB EMERT, Case No.: 3:23-cv-2318-JES-VET 12 Petitioner, ORDER DISMISSING FIRST 13 v. AMENDED PETITION FOR WRIT OF HABEAS CORPUS WITHOUT 14 PEOPLE OF THE STATE OF PREJUDICE CALIFORNIA, et al., 15 Respondent. 16 17 18 I. BACKGROUND 19 On December 20, 2023, Petitioner submitted a Petition for Writ of Habeas Corpus 20 pursuant to 28 U.S.C. § 2254, together with a request to proceed in forma pauperis 21 (“IFP”). ECF Nos. 1, 2. On January 2, 2024, the Court denied Petitioner’s IFP application 22 and dismissed the Petition without prejudice. ECF No 5. The Court notified Petitioner 23 that in order to have his case reopened, he must (1) either pay the filing fee or provide 24 adequate proof of his inability to pay and (2) file a First Amended Petition curing the 25 pleading deficiencies outlined in the Court’s Order, no later than February 16, 2024. See 26 id. at 3. On February 13, 2024, Petitioner submitted the $5.00 filing fee, along with a 27 First Amended Petition. See ECF Nos. 6, 7. 28 1 II. FAILURE TO ALLEGE EXHAUSTION OF STATE JUDICIAL REMEDIES 2 Review of the First Amended Petition and attachments show it must also be 3 dismissed for failure to allege exhaustion of state judicial remedies. As discussed in this 4 Court’s previous Order, habeas petitioners who wish to challenge their state court 5 conviction or custodial sentence, must first exhaust state judicial remedies. 28 U.S.C. 6 § 2254(b), (c); Granberry v. Greer, 481 U.S. 129, 133-34 (1987). To do so, a petitioner 7 must 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 has stated: “If state courts are to be given the 12 opportunity to correct alleged violations of prisoners’ federal rights, they must surely be 13 alerted to the fact that the prisoners are asserting claims under the United States 14 Constitution.” Duncan v. Henry, 513 U.S. 364, 365–66 (1995). For example, “[i]f a 15 habeas petitioner wishes to claim that an evidentiary ruling at a state court trial denied 16 him [or her] the due process of law guaranteed by the Fourteenth Amendment, he [or she] 17 must say so, not only in federal court, but in state court.” Id. at 366. 18 Nowhere on the First Amended Petition does Petitioner allege that he raised his 19 claims in the California Supreme Court. In fact, he indicates he has only sought state 20 habeas relief in the superior court and appellate court. See ECF No. 6 at 12. To the extent 21 Petitioner states he need not seek relief from the judgement of conviction in the 22 California Supreme Court in order to exhaust state judicial remedies, he is mistaken. See 23 Gatlin v. Madding, 189 F.3d 882, 888 (9th Cir. 1999) (“To exhaust a habeas claim 24 properly, a petitioner must present his claim to the state supreme court even if that court’s 25 review is discretionary.”) Petitioner states he filed petitions for review in the California 26 Supreme Court (ECF No. 9 at 9, 12), but those petitions related to his family court 27 28 1 proceedings, not the conviction from which he is currently “in custody.” “The burden of 2 proving that a claim has been exhausted lies with the petitioner.” Matthews v. Evatt, 105 3 F.3d 907, 911 (4th Cir. 1997); see Breard v. Pruett, 134 F.3d 615, 619 (4th Cir. 1998); 4 Lambert v. Blackwell, 134 F.3d 506, 513 (3d Cir. 1997); Oyler v. Allenbrand, 23 F.3d 5 292, 300 (10th Cir. 1994). 6 A habeas petition must be summarily dismissed “[i]f it plainly appears from the 7 face of the petition and any exhibits annexed to it that the petitioner is not entitled to 8 relief in the district court . . ..” Rule 4, 28 U.S.C. foll. § 2254. Here, it appears plain from 9 the First Amended Petition that Petitioner is not presently entitled to federal habeas relief 10 because he has not alleged exhaustion of state court remedies. 11 III. FAILURE TO NAME A PROPER RESPONDENT 12 Petitioner has also failed to name a proper respondent. On federal habeas, a 13 petitioner must name the state officer having custody of him as the respondent. Ortiz- 14 Sandoval v. Gomez, 81 F.3d 891, 894 (9th Cir. 1996) (citing Rule 2(a), 28 U.S.C. foll. § 15 2254). Federal courts lack personal jurisdiction when a habeas petition fails to name a 16 proper respondent. See id. 17 The warden is the typical respondent. However, “the rules following section 2254 18 do not specify the warden.” Id. “[T]he ‘state officer having custody’ may be ‘either the 19 warden of the institution in which the petitioner is incarcerated . . . or the chief officer in 20 charge of state penal institutions.’” Id. (quoting Rule 2(a), 28 U.S.C. foll. § 2254 advisory 21 committee’s note). If “a petitioner is in custody due to the state action he is challenging, 22 ‘[t]he named respondent shall be the state officer who has official custody of the 23 petitioner (for example, the warden of the prison).’” Id. (quoting Rule 2, 28 U.S.C. foll. § 24 2254 advisory committee’s note). If a “petitioner is on probation or parole, he may name 25 26 27 1 Petitioner states he was sentenced to three months’ probation on April 3, 2023, after pleading guilty to violating California Penal Code § 278.5(a) (deprivation of custody of child or right to 28 1 || his probation or parole officer ‘and the official in charge of the parole or probation 2 agency, or the state correctional agency, as appropriate.’” /d. (quoting Rule 2, 28 U.S.C. 3 || foll. § 2254 advisory committee’s note). 4 Here, Petitioner names “The People of the State of California” and “San Diego 5 || Superior Court” as Respondents. ECF No. 6 at 1. A long-standing rule in the Ninth 6 || Circuit holds “that a petitioner may not seek [a writ of] habeas corpus against the State 7 ||under ... [whose] authority . . . the petitioner is in custody. The actual person who is 8 || [the] custodian [of the petitioner] must be the respondent.” Ashley v. Washington, 394 9 || F.2d 125, 126 (9th Cir. 1968). This requirement exists because a writ of habeas corpus 10 || acts upon the custodian of the state prisoner, the person who will produce “the body” if 11 || directed to do so by the Court. 12 IV. CONCLUSION 13 Accordingly, the Court DISMISSES the case without prejudice. Petitioner is 14 || advised that if he has not submitted a Second Amended Petition which names a proper 15 respondent and adequately alleges exhaustion of his state court remedies before March 16 2024, the case will be dismissed without further leave to amend and Petitioner will 17 to start over by filing a new habeas petition in this Court. See In re Turner, 101 F.3d 18 || 1323 (9th Cir. 1997). 19 IT IS SO ORDERED. 20 51 Dated: February 26, 2024 “4 we Se 4, 22 Honorable James E. Sunmons Jr. 3 United States District Judge 24 25 26 27 28