(HC) Montenegro v. Sullivan ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 JUAN M. MONTENEGRO, ) Case No.: 1:20-cv-00695-JLT (HC) ) 12 Petitioner, ) ORDER DIRECTING CLERK OF COURT TO ) ASSIGN DISTRICT JUDGE 13 v. ) ) FINDINGS AND RECOMMENDATION TO 14 WARDEN J. SULLIVAN, ) DISMISS PETITION 15 Respondent. ) ) [THIRTY-DAY OBJECTION DEADLINE] 16 ) ) 17 18 On May 18, 2020, Petitioner filed the instant petition for writ of habeas corpus in this Court. 19 (Doc. 1.) Because the petition fails to state a cognizable federal claim for relief, the Court will 20 recommend it be SUMMARILY DISMISSED without prejudice. 21 DISCUSSION 22 A. Preliminary Review of Petition 23 Rule 4 of the Rules Governing Section 2254 Cases requires the Court to make a preliminary 24 review of each petition for writ of habeas corpus. The Court must summarily dismiss a petition “[i]f it 25 plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in 26 the district court . . . .” Rule 4; O’Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 1990). The Advisory 27 Committee Notes to Rule 8 indicate that the Court may dismiss a petition for writ of habeas corpus, 28 either on its own motion under Rule 4, pursuant to the respondent’s motion to dismiss, or after an 1 answer to the petition has been filed. 2 B. Failure to State a Cognizable Federal Claim 3 The basic scope of habeas corpus is prescribed by statute. Title 28 U.S.C. § 2254(a) states: 4 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 in custody pursuant to a 5 judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States. 6 7 (emphasis added). See also Rule 1 to the Rules Governing Section 2254 Cases in the United States 8 District Court. The Supreme Court has held that “the essence of habeas corpus is an attack by a 9 person in custody upon the legality of that custody . . .” Preiser v. Rodriguez, 411 U.S. 475, 484 10 (1973). 11 To succeed in a petition pursuant to 28 U.S.C. § 2254, Petitioner must demonstrate that the 12 adjudication of his claim in state court 13 (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United 14 States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. 15 16 28 U.S.C. § 2254(d)(1),(2). In addition to the above, Rule 2(c) of the Rules Governing Section 2254 17 Cases requires that the petition: 18 (1) Specify all the grounds for relief available to the petitioner; (2) State the facts supporting each ground; 19 (3) State the relief requested; (4) Be printed, typewritten, or legibly handwritten; and 20 (5) Be signed under penalty of perjury by the petitioner or by a person authorized to sign it for the petitioner under 28 U.S.C. § 2242. 21 22 Petitioner has failed to comply with Rule 2(c) by failing to specify any cognizable ground for 23 relief or the facts supporting his claims. Rule 2(c) requires that each ground for relief be clearly stated, 24 along with providing specific factual allegations that support the grounds for relief. O'Bremski v. 25 Maass, 915 F.2d 418, 420 (9th Cir. 1990); United States v. Popoola, 881 F.2d 811, 812 (9th Cir. 26 1989). It appears the single claim Petitioner makes is “to get release for better health care due to his 27 disability.” (Doc. 1 at 3.) Petitioner fails to describe the severity of his mental and physical symptoms, 28 the treatments he has received or why he considers those treatments to be inadequate. Petitioner fails 1 to state a claim on the ground that he is in custody in violation of the Constitution or laws or treaties of 2 the United States. Because Petitioner fails to state a claim cognizable on federal habeas review, the 3 Court lacks jurisdiction to review the petition and will recommend that the petition be dismissed. 4 Additionally, the defects in his pleading are not capable of being cured through amendment. See 5 Akhtar v. Mesa, 698 F.3d 1202, 1212-13 (9th Cir. 2012). 6 ORDER 7 The Court DIRECTS the Clerk of Court to assign a district judge to the case. 8 RECOMMENDATION 9 Accordingly, the Court RECOMMENDS that the habeas corpus petition be SUMMARILY 10 DISMISSED without prejudice for lack of jurisdiction. 11 This Findings and Recommendation is submitted to the United States District Court Judge 12 assigned to this case, pursuant to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of the 13 Local Rules of Practice for the United States District Court, Eastern District of California. Within 14 thirty days after being served with a copy, Petitioner may file written objections with the Court. Such 15 a document should be captioned “Objections to Magistrate Judge’s Findings and Recommendation.” 16 The Court will then review the Magistrate Judge’s ruling pursuant to 28 U.S.C. § 636 (b)(1)(C). 17 Failure to file objections within the specified time may waive the right to appeal the District Court’s 18 order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 19 20 IT IS SO ORDERED. 21 Dated: June 13, 2020 /s/ Jennifer L. Thurston 22 UNITED STATES MAGISTRATE JUDGE 23 24 25 26 27 28