Gilbert v. San Bernardino

Opinion

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 10 CHAKA D. GILBERT, Case No.: 19cv2052-GPC (AHG)

11 Petitioner, ORDER DISMISSING CASE 12 v. WITHOUT PREJUDICE 13 SAN BERNARDINO and COALINGA, 14 Respondents. 15 16 Petitioner, a person detained at the California Department of State Hospitals, 17 Coalinga, is proceeding pro se with a Petition for a Writ of Habeas Corpus pursuant to 28 18 U.S.C. § 2254. (ECF No. 1.) The Petition is subject to dismissal without prejudice for 19 failure to satisfy the filing fee requirement, failure to name a respondent, failure to sign the 20 Petition, and failure to state a cognizable habeas claim. 21 FAILURE TO SATISFY FILING FEE REQUIREMENT 22 Petitioner has failed to pay the $5.00 filing fee and has failed to move to proceed in 23 forma pauperis. Because this Court cannot proceed until Petitioner has either paid the 24 $5.00 filing fee or qualified to proceed in forma pauperis, the Court DISMISSES the case 25 without prejudice. See Rule 3(a), 28 U.S.C. foll. § 2254. 26 FAILURE TO NAME PROPER RESPONDENT 27 On federal habeas, a state prisoner must name the state officer having custody of 28 him as the respondent. Ortiz-Sandoval v. Gomez, 81 F.3d 891, 894 (9th Cir. 1996), citing 1 Rule 2(a), 28 U.S.C. foll. § 2254. “Typically, that person is the warden of the facility in 2 which the petitioner is incarcerated.” Id. Federal courts lack personal jurisdiction when a 3 habeas petition fails to name a proper respondent. See id. 4 The warden is the typical respondent. However, “the rules following section 2254 5 do not specify the warden.” Id. “[T]he ‘state officer having custody’ may be ‘either the 6 warden of the institution in which the petitioner is incarcerated . . . or the chief officer in 7 charge of state penal institutions.’” Id. (quoting Rule 2(a), 28 U.S.C. foll. § 2254 advisory 8 committee’s note). If “a petitioner is in custody due to the state action he is challenging, 9 ‘[t]he named respondent shall be the state officer who has official custody of the petitioner 10 (for example, the warden of the prison).’” Id. (quoting Rule 2, 28 U.S.C. foll. § 2254 11 advisory committee’s note). Here, Petitioner has incorrectly named “San Bernardino” and 12 “Coalinga” as respondents. 13 FAILURE TO SIGN PETITION 14 Rule 2(c) of the Rules Governing Section 2254 Cases provides that “[t]he petition 15 must be printed, typewritten or legibly handwritten; and be signed under penalty of perjury 16 by the petitioner or by a person authorized to sign it for the petitioner under 28 U.S.C. 17 § 2242.” Rule 2(c), 28 U.S.C. foll. § 2254. Here, Petitioner has failed to sign the Petition. 18 FAILURE TO STATE A COGNIZABLE CLAIM ON FEDERAL HABEAS 19 Additionally, in accordance with Rule 4 of the rules governing § 2254 cases, 20 Petitioner has failed to allege that his state court conviction or sentence violates the 21 Constitution of the United States. 22 Title 28, United States Code, § 2254(a), sets forth the following scope of review for 23 federal habeas corpus claims: 24 The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an application for a writ of habeas corpus in behalf of a person 25 in custody pursuant to the judgment of a State court only on the ground that 26 he is in custody in violation of the Constitution or laws or treaties of the United States. 27 28 28 U.S.C. § 2254(a). 1 Thus, to present a cognizable federal habeas corpus claim under § 2254, a state 2 || prisoner must allege both that he is in custody pursuant to a “judgment of a State court,” 3 || and that he is in custody in “violation of the Constitution or laws or treaties of the United 4 States.” See 28 U.S.C. § 2254(a). 5 Here, Petitioner does not identify any claims, but sets forth what appears to be a 6 ||narrative regarding how he came to be housed at the California Department of State 7 || Hospitals, Coalinga. (ECF No. 1 at 3-4.) In no way does he claim he is “in custody in 8 || violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254. 9 || Thus, as currently pleaded, Petitioner has failed to state a cognizable habeas claim. 10 CONCLUSION AND ORDER 11 Accordingly, the Court DISMISSES the Petition without prejudice for failure to 12 satisfy the filing fee requirement, failure to name a proper respondent, failure to sign the 13 || Petition and failure to state a cognizable habeas claim. If Petitioner wishes to proceed with 14 action, he must either pay the $5.00 filing fee or submit a request to proceed in forma 15 || pauperis and file a First Amended Petition which is signed, names a proper respondent, 16 || and states a cognizable federal habeas claim on or before December 31, 2019. 17 IT IS SO ORDERED. 18 || Dated: October 31, 2019 (onthe (4 ) 19 Hon. Gonzalo P. Curiel 20 United States District Judge 21 22 23 24 25 26 27 28