Terry Lewis v. Hon. Janis L. Sammartino

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 TERRY LEWIS, Case No.: 20cv0195 GPC (AGS)

12 Petitioner, ORDER: (1) GRANTING 13 v. APPLICATION TO PROCEED IN FORMA PAUPERIS; and (2) 14 HON. JANIS SAMMARTINO, et al., DISMISSING CASE WITHOUT 15 PREJUDICE AND WITH LEAVE TO Respondent. AMEND 16 17 Petitioner, a state prisoner proceeding pro se, submitted a Petition for Writ of 18 Habeas Corpus pursuant to 28 U.S.C. § 2254 on January 15, 2020, to the United States 19 District Court for the Central District of California. (ECF No. 1.) On January 30, 2020, 20 the case was transferred to this Court. (ECF No. 3.) This Court dismissed the action 21 without prejudice and with leave to amend on February 19, 2020, and Petitioner was 22 given until April 6, 2020 to either pay the $5.00 filing fee or submit adequate proof of his 23 inability to pay the fee, and to file a First Amended Petition that cured the pleading 24 deficiencies outlined in the Court’s Order. (Id.) On March 23, 2020, Petitioner filed a 25 Motion to Proceed in Forma Pauperis and a first Amended Petition. 26 MOTION TO PROCEED IN FORMA PAPERIS 27 Petitioner has submitted a financial document that indicates he cannot afford the 28 $5.00 filing fee. (See ECF No. 8 at 5.) Thus, the Court GRANTS Petitioner’s 1 application to proceed in forma pauperis and allows Petitioner to prosecute the above- 2 referenced action without being required to prepay fees or costs and without being 3 required to post security. The Clerk of the Court shall file the Petition for Writ of Habeas 4 Corpus without prepayment of the filing fee. 5 FAILURE TO NAME A PROPER RESPONDENT 6 Review of the Petition reveals that Petitioner has failed to name a proper 7 respondent. On federal habeas, a state prisoner must name the state officer having 8 custody of him as the respondent. Ortiz-Sandoval v. Gomez, 81 F.3d 891, 894 (9th Cir. 9 1996) (citing Rule 2(a), 28 U.S.C. foll. § 2254). Federal courts lack personal jurisdiction 10 when a habeas petition fails to name a proper respondent. See id. 11 The warden is the typical respondent. However, “the rules following section 2254 12 do not specify the warden.” Id. “[T]he ‘state officer having custody’ may be ‘either the 13 warden of the institution in which the petitioner is incarcerated . . . or the chief officer in 14 charge of state penal institutions.’” Id. (quoting Rule 2(a), 28 U.S.C. foll. § 2254 15 advisory committee’s note). If “a petitioner is in custody due to the state action he is 16 challenging, ‘[t]he named respondent shall be the state officer who has official custody of 17 the petitioner (for example, the warden of the prison).’” Id. (quoting Rule 2, 28 U.S.C. 18 foll. § 2254 advisory committee’s note). 19 A long-standing rule in the Ninth Circuit holds “that a petitioner may not seek [a 20 writ of] habeas corpus against the State under . . . [whose] authority . . . the petitioner is 21 in custody. The actual person who is [the] custodian [of the petitioner] must be the 22 respondent.” Ashley v. Washington, 394 F.2d 125, 126 (9th Cir. 1968). This requirement 23 exists because a writ of habeas corpus acts upon the custodian of the state prisoner, the 24 person who will produce “the body” if directed to do so by the Court. “Both the warden 25 of a California prison and the Director of Corrections for California have the power to 26 produce the prisoner.” Ortiz-Sandoval, 81 F.3d at 895. Here, Petitioner has incorrectly 27 named “Hon. Janis Sammartino, Warden David Baughman, United States Department of 28 Justice, Attorney General, and Judge Thompson,” as Respondents. In order for this Court 1 to entertain the Petition filed in this action, Petitioner must name the warden in charge of 2 the state correctional facility in which Petitioner is presently confined or the Secretary of 3 the California Department of Corrections and Rehabilitation. Brittingham v. United 4 States, 982 F.2d 378, 379 (9th Cir. 1992) (per curiam). 5 FAILURE TO ALLEGE EXHAUSTION OF STATE JUDICIAL REMEDIES 6 Further, habeas petitioners who wish to challenge either their state court conviction 7 or the length of their confinement in state prison, must first exhaust state judicial 8 remedies. 28 U.S.C. § 2254(b), (c); Granberry v. Greer, 481 U.S. 129, 133-34 (1987). 9 To exhaust state judicial remedies, a California state prisoner must present the California 10 Supreme Court with a fair opportunity to rule on the merits of every issue raised in his or 11 her federal habeas petition. 28 U.S.C. § 2254(b), (c); Granberry, 481 U.S. at 133-34. 12 Moreover, to properly exhaust state court remedies a petitioner must allege, in state court, 13 how one or more of his or her federal rights have been violated. The Supreme Court in 14 Duncan v. Henry, 513 U.S. 364 (1995) reasoned: “If state courts are to be given the 15 opportunity to correct alleged violations of prisoners’ federal rights, they must surely be 16 alerted to the fact that the prisoners are asserting claims under the United States 17 Constitution.” Id. at 365-66 (emphasis added). For example, “[i]f a habeas petitioner 18 wishes to claim that an evidentiary ruling at a state court trial denied him [or her] the due 19 process of law guaranteed by the Fourteenth Amendment, he [or she] must say so, not 20 only in federal court, but in state court.” Id. at 366 (emphasis added). 21 Nowhere on the Petition does Petitioner allege that he raised his claims in the 22 California Supreme Court. If Petitioner has raised his claims in the California Supreme 23 Court he must so specify. “The burden of proving that a claim has been exhausted lies 24 with the petitioner.” Matthews v. Evatt, 105 F.3d 907, 911 (4th Cir. 1997); see Breard v. 25 Pruett, 134 F.3d 615, 619 (4th Cir. 1998); Lambert v. Blackwell, 134 F.3d 506, 513 (3d 26 Cir. 1997); Oyler v. Allenbrand, 23 F.3d 292, 300 (10th Cir. 1994); Rust v. Zent, 17 F.3d 27 155, 160 (6th Cir. 1994). 28 / / / 1 Further, the Court cautions Petitioner that under the Antiterrorism and Effective 2 Death Penalty Act of 1996 (AEDPA) a one-year period of limitation shall apply to a 3 petition for a writ of habeas corpus by a person in custody pursuant to the judgment of a 4 State court. The limitation period shall run from the latest of: 5 (A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review; 6 7 (B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is 8 removed, if the applicant was prevented from filing by such State action; 9 (C) the date on which the constitutional right asserted was initially 10 recognized by the Supreme Court, if the right has been newly recognized by 11 the Supreme Court and made retroactively applicable to cases on collateral review; or 12 13 (D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence. 14 15 28 U.S.C. § 2244(d)(1)(A)-(D) (West 2006). 16 The statute of limitations does not run while a properly filed state habeas corpus 17 petition is pending. 28 U.S.C. § 2244(d)(2); see Nino v. Galaza, 183 F.3d 1003, 1006 18 (9th Cir. 1999). But see Artuz v. Bennett, 531 U.S. 4, 8 (2000) (holding that “an 19 application is ‘properly filed’ when its delivery and acceptance [by the appropriate court 20 officer for placement into the record] are in compliance with the applicable laws and 21 rules governing filings.”). However, absent some other basis for tolling, the statute of 22 limitations does run while a federal habeas petition is pending. Duncan v. Walker, 533 23 U.S. 167, 181-82 (2001). 24 FAILURE TO STATE A COGNIZABLE FEDERAL CLAIM 25 In grounds one and three, Petitioner states that Respondent Baughman failed to 26 protect him from being beaten in prison and that correctional officers at Folsom Prison beat 27 him. (ECF No. 7 at 4, 6.) Petitioner’s claims in grounds one and three are not cognizable 28 on federal habeas corpus review because they do not challenge the constitutional validity 1 or duration of confinement. See 28 U.S.C. § 2254(a); Preiser v. Rodriguez, 411 U.S. 475, 2 500 (1973); Heck v. Humphrey, 512 U.S. 477, 480-85 (1994). Challenges to the fact or 3 duration of confinement are brought by petition for a writ of habeas corpus, pursuant to 28 4 U.S.C. § 2254; challenges to conditions of confinement are brought pursuant to the Civil 5 Rights Act, 42 U.S.C. § 1983. See Preiser, 411 U.S. at 488-500. When a state prisoner is 6 challenging the very fact or duration of his physical imprisonment, and the relief he seeks 7 is a determination that he is entitled to immediate release or a speedier release from that 8 imprisonment, his sole federal remedy is a writ of habeas corpus. Id. at 500. On the other 9 hand, a 42 U.S.C. § 1983 action is a proper remedy for a state prisoner who is making a 10 constitutional challenge to the conditions of his prison life, but not to the fact or length of 11 his custody. Id. at 499; McIntosh v. United States Parole Comm’n, 115 F.3d 809, 811-12 12 (10th Cir. 1997). 13 Additionally, in accordance with Rule 4 of the rules governing § 2254 cases, 14 Petitioner has failed to allege that his state court conviction or sentence violates the 15 Constitution of the United States. Title 28, United States Code, § 2254(a), sets forth the 16 following scope of review for federal habeas corpus claims: 17 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 18 person in custody pursuant to the judgment of a State court only on the 19 ground that he is in custody in violation of the Constitution or laws or treaties of the United States. 20 21 28 U.S.C. § 2254(a) (emphasis added). See Hernandez v. Ylst, 930 F.2d 714, 719 (9th 22 Cir. 1991); Mannhalt v. Reed, 847 F.2d 576, 579 (9th Cir. 1988). Thus, to present a 23 cognizable federal habeas corpus claim under § 2254, a state prisoner must allege both 24 that he is in custody pursuant to a “judgment of a State court,” and that he is in custody in 25 “violation of the Constitution or laws or treaties of the United States.” See 28 U.S.C. 26 § 2254(a). In ground two Petitioner asks to be paroled and to have his strike convictions 27 stricken pursuant to Romero v. Superior Court. (ECF No. 7 at 5.) While Petitioner seeks 28 1 || to be released from custody, he does not claim he is “in custody in violation of the 2 || Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254. 3 CONCLUSION 4 For the foregoing reasons, the Court GRANTS the request to proceed in forma 5 || pauperis and DISMISSES the case without prejudice and with leave to amend. If 6 || Petitioner wishes to challenge the validity of his state court conviction or sentence and 7 || have this case reopened, he must, no later than June 5, 2020, submit a Second Amended 8 || Petition that cures the pleading deficiencies outlined in this Order. If Petitioner wishes to 9 || challenge the conditions of his confinement pursuant to 42 U.S.C. § 1983, he must file a 10 case with a new 42 U.S.C. § 1983 complaint which will be given a new case 11 ||number. The Clerk of Court is directed to mail Petitioner a blank Second Amended 12 || Petition pursuant to 28 U.S.C. § 2254 form and a blank Civil Rights Complaint 13 ||pursuant to 42 U.S.C. § 1983 form together with a copy of this Order. 14 IT IS SO ORDERED. 15 Dated: April 6, 2020 2 16 Hon. athe Ck 17 United States District Judge 18 19 20 21 22 23 24 25 26 27 28