(HC) Escalon v. MCSP Warden ( 2019 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 RICHARD V. ESCALON, Case No. 1:19-cv-00434-JDP (HC) 12 Petitioner, ORDER DIRECTING CLERK OF COURT TO ASSIGN CASE TO DISTRICT JUDGE 13 v. FINDINGS AND RECOMMENDATIONS TO 14 MCSP WARDEN, DISMISS PETITION FOR HABEAS CORPUS AT SCREENING 15 Respondent. ECF No. 1 16 OBJECTIONS DUE IN 14 DAYS 17 18 Petitioner Richard V. Escalon, a state prisoner without counsel, seeks a writ of habeas 19 corpus under 28 U.S.C. § 2254. ECF No. 1. The matter is before the court for screening under 20 Rule 4 of the Rules Governing Section 2254 Cases. We recommend that the court dismiss the 21 case at screening. 22 I. Screening 23 Under Rule 4, the judge assigned to the habeas proceeding must examine the habeas 24 petition and order a response to the petition unless it “plainly appears” that the petitioner is not 25 entitled to relief. See Valdez v. Montgomery, 918 F.3d 687, 693 (9th Cir. 2019); Boyd v. 26 Thompson, 147 F.3d 1124, 1127 (9th Cir. 1998). The rule allows courts to dismiss screen 27 petitions that are patently frivolous, vague, conclusory, palpably incredible, or false. See 28 Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Cir. 1990). Unlike a complaint in other civil cases, 1 a Section 2254 petition must adhere to a proscribed form appended to Rules Governing Section 2 2254 Cases. See Rules Governing Section 2254 Cases, Rule 2(d). The appended form prompts a 3 habeas petitioner to provide answers pertaining to various procedural matters, such as procedural 4 default and exhaustion, and the court may dismiss claims at screening for procedural defects. See 5 Boyd, 147 F.3d at 1128. 6 Here, the petition presents at least three problems. First, petitioner fails to state a 7 cognizable claim. The petition contains only one potential habeas claim: that the prosecutor did 8 not indict petitioner through a grand jury proceeding. See ECF No. 1 at 6. Petitioner argues that 9 the prosecutor’s failure to do so violated the Fifth Amendment of the Constitution. See id. But 10 the Grand Jury Clause of the Constitution has not been made applicable to states, so the 11 government in petitioner’s state criminal proceeding had no obligation under the Fifth 12 Amendment to indict him through a grand jury proceeding. See Hurtado v. People of State of 13 Cal., 110 U.S. 516, 534–35 (1884); Peterson v. California, 604 F.3d 1166, 1170 (9th Cir. 2010). 14 Second, the petition presents a few procedural defects. Petitioner concedes that he has not 15 exhausted his state court remedies by presenting his claim in state court—either on direct appeal 16 or in a post-conviction proceeding. See ECF No. 1 at 7. This court ordinarily cannot grant 17 habeas relief when a petitioner has failed to exhaust his claim in state court. See 28 U.S.C. 18 § 2254(b)(1)(A); Murray v. Schriro, 882 F.3d 778, 807 (9th Cir. 2018). Petitioner does not 19 explain why he has not exhausted his claim in state court, even though the form he used to 20 complete his petition prompted him to provide an explanation. See ECF No. 1 at 7. Petitioner 21 also concedes that his petition is untimely and provides a frivolous excuse for the untimeliness, 22 stating: 23 Petitioner was dreaming that someone would come along and fight against all odds. A KAMIKAZE, with two hands. Needing a ham 24 sandwich. 25 Id. at 14. 26 27 28 1 Third, the petition is signed not by petitioner, but by another inmate, Clifford C. Loyer. 2 See id. at 16. The petition says: 3 Petitioner is not signing because the signature above is the name in effect for petitioner and will not allow this man to be pushed 4 around. Secondly, the name in effect is currently locked in a cell separated from petitioner, operating in a free, legally triggered 5 action. Helping. 6 Id. These confusing and conclusory statements do not show that Loyer had authorization from 7 petitioner to sign the petition, as required by Rule 2(c)(5) of Section 2254 Cases. 8 The foregoing defects warrant summary dismissal of the petition. We issued an order to 9 show cause in May 2019, requiring petitioner—or Loyer—to explain why the court should not 10 summarily dismiss the petition given the obvious defects discussed above. ECF No. 5. Months 11 have passed with no response to our order to show case. We therefore recommend that the court 12 dismiss the petition at screening. Because we have some concern that Loyer filed the petition as a 13 jest without authorization from petitioner, the dismissal should be without prejudice. 14 II. Certificate of Appealability 15 A petitioner seeking a writ of habeas corpus has no absolute right to appeal a district 16 court’s denial of a petition; he may appeal only in limited circumstances. See 28 U.S.C. § 2253; 17 Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003). Rule 11 Governing Section 2254 Cases 18 requires a district court to issue or deny a certificate of appealability when entering a final order 19 adverse to a petitioner. See also Ninth Circuit Rule 22-1(a); United States v. Asrar, 116 F.3d 20 1268, 1270 (9th Cir. 1997). A certificate of appealability will not issue unless a petitioner makes 21 “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). This 22 standard requires the petitioner to show that “jurists of reason could disagree with the district 23 court’s resolution of his constitutional claims or that jurists could conclude the issues presented 24 are adequate to deserve encouragement to proceed further.” Miller-El, 537 U.S. at 327; see Slack 25 v. McDaniel, 529 U.S. 473, 484 (2000). The petitioner must show “something more than the 26 absence of frivolity or the existence of mere good faith.” Miller-El, 537 U.S. at 338. 27 Reasonable jurists would not disagree with our conclusion or conclude that petitioner 28 should proceed further. Thus, the court should decline to issue a certificate of appealability. 1 | UO. Order 2 The clerk of court is directed to assign this case to a U.S. District Judge, who will review 3 | the following findings and recommendations. 4 | IV. Findings and Recommendations 5 We recommend that the court dismiss the petition for a writ of habeas corpus, ECF No. 1, 6 | without prejudice and decline to issue a certificate of appealability. 7 These findings and recommendations are submitted to the U.S. District Court Judge 8 || presiding over this case under 28 U.S.C. § 636(b)(1)(B) and Rule 304 of the Local Rules of 9 | Practice for the United States District Court, Eastern District of California. Within fourteen days 10 | of the service of the findings and recommendations, petitioner may file written objections to the 11 | findings and recommendations with the court and serve a copy on all parties. That document 12 | must be captioned “Objections to Magistrate Judge’s Findings and Recommendations.” The 13 | District Judge will then review the findings and recommendations under 28 U.S.C. 14 | § 636) )(C). 15 16 IT IS SO ORDERED. 17 ( Waban Dated: _ August 5, 2019 18 UNI STATES MAGISTRATE JUDGE 19 20 21 No. 202 22 23 24 25 26 27 28