(HC) Pierce v. United States ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 SCOTT MATTHEW PIERCE, No. 1:22-cv-00107-HBK 12 Petitioner, ORDER GRANTING LEAVE TO FILE A FIRST AMENDED PETITION 13 v. THIRTY DAY DEADLINE 14 UNITED STATES OF AMERICA, 15 Respondent. 16 17 On December 13, 2021, Petitioner filed a petition for writ of habeas corpus under 28 18 U.S.C. § 2241. (Doc. No. 1). The petition was transferred to this court from the District of South 19 Carolina because Petition was incarcerated within the jurisdiction and venue of this Court when 20 he filed the petition. (Doc. Nos. 4, 8, 11). A preliminary screening of the petition reveals that it 21 fails to present any cognizable grounds for relief or any facts in support and fails to name a proper 22 respondent. Therefore, the Court will afford Petitioner an opportunity to file an amended petition 23 before recommending dismissal of this action. 24 DISCUSSION 25 A. Preliminary Review of Petition 26 Rule 4 of the Rules Governing § 2254 Cases requires the Court to make a preliminary 27 review of each petition for writ of habeas corpus. The Court must dismiss a petition "[i]f it 28 plainly appears from the petition . . . that the petitioner is not entitled to relief." Rule 4 of the 1 Rules Governing § 2254 Cases; see also Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Cir. 1990). 2 The Advisory Committee Notes to Rule 8 indicate that the Court may dismiss a petition for writ 3 of habeas corpus, either on its own motion under Rule 4, pursuant to the respondent’s motion to 4 dismiss, or after an answer to the petition has been filed. A petition for habeas corpus should not 5 be dismissed without leave to amend unless it appears that no tenable claim for relief can be 6 pleaded were such leave granted. Jarvis v. Nelson, 440 F.2d 13, 14 (9th Cir. 1971). 7 B. Failure to State a Cognizable Federal Claim 8 The basic scope of habeas corpus is prescribed by statute. Title 28 U.S.C. § 2241(c)(3) 9 provides that the writ of habeas corpus shall not extend to a prisoner unless “[h]e is in custody in 10 violation of the Constitution or laws or treaties of the United States.” The Supreme Court has 11 held that “the essence of habeas corpus is an attack by a person in custody upon the legality of 12 that custody . . ..” Preiser v. Rodriguez, 411 U.S. 475, 484 (1973). 13 In addition to the above, Rule 2(c) of the Rules Governing Section 2254 Cases1 requires 14 that the petition: 15 (1) Specify all the grounds for relief available to the petitioner; 16 (2) State the facts supporting each ground; 17 (3) State the relief requested; 18 (4) Be printed, typewritten, or legibly handwritten; and (5) Be signed under penalty of perjury by the petitioner or by a person authorized to sign 19 it for the petitioner under 28 U.S.C. § 2242. 20 Further, 28 U.S.C. § 2242 requires a petitioner to allege the facts concerning the petitioner’s 21 commitment or detention. 22 The petition relates to a 2019 disciplinary conviction Petitioner received while he was 23 incarcerated in Bennettsville, South Carolina. Petitioner states his is “not challenging the write- 24 up,” but is requesting that 41 days of good time credit be restored. (Doc. No. 1 at 2). Petitioner 25 further admits he did not appeal his disciplinary conviction because he did not know how to 26 27 1 The Rules Governing Section 2254 Cases in the United States Courts (Habeas Rules) are appropriately applied to 28 proceedings undertaken pursuant to 28 U.S.C. § 2241. Habeas Rule 1(b). 1 appeal and feared retaliation. (Id.). 2 Here, Petitioner does not allege he is in custody in violation of the Constitution or laws or 3 treaties of the United States. And the petitioner fails to specify any ground(s) for relief or any 4 facts supporting his ground(s). The petition is silent on what basis Petitioner is entitled to have 5 his good time credit restored. Therefore, the petition fails to state a cognizable federal habeas 6 claim and is subject to dismissal. Petitioner will be granted an opportunity to file a First 7 Amended Petition curing these deficiencies if he is able. Petitioner is advised that he should 8 caption his pleading, “First Amended Petition,” and he should reference the instant case number. 9 Failure to comply with this order will result in dismissal of the action 10 C. Failure to Name a Proper Respondent 11 Petitioner also identifies the United States of America as the Respondent. A petitioner 12 seeking habeas corpus relief must name the officer having custody of him as the respondent to the 13 petition. Rule 2(a) of the Rules Governing § 2254 Cases; Ortiz-Sandoval v. Gomez, 81 F.3d 891, 14 894 (9th Cir. 1996); Stanley v. California Supreme Court, 21 F.3d 359, 360 (9th Cir. 1994). 15 Normally, the person having custody of an incarcerated petitioner is the warden of the prison in 16 which the petitioner is incarcerated because the warden has "day-to-day control over" the 17 petitioner. Brittingham v. United States, 982 F.2d 378, 379 (9th Cir. 1992); see also Stanley, 21 18 F.3d at 360. However, the chief officer in charge of penal institutions is also appropriate. Ortiz, 19 81 F.3d at 894; Stanley, 21 F.3d at 360. Where a petitioner is on probation or parole, the proper 20 respondent is his probation or parole officer and the official in charge of the parole or probation 21 agency or correctional agency. Id. 22 Petitioner’s failure to name a proper respondent requires dismissal of his habeas petition 23 for lack of jurisdiction. Stanley, 21 F.3d at 360; Olson v. California Adult Auth., 423 F.2d 1326, 24 1326 (9th Cir. 1970); see also Billiteri v. United States Bd. Of Parole, 541 F.2d 938, 948 (2nd 25 Cir. 1976). However, the Court will give Petitioner the opportunity to cure this defect by 26 amending the petition to name a proper respondent, such as the warden of his facility. See West v. 27 Louisiana, 478 F.2d 1026, 1029 (5th Cir. 1973), vacated in part on other grounds, 510 F.2d 363 28 (5th Cir. 1975) (en banc) (allowing petitioner to amend petition to name proper respondent); 1 | Ashley v. State of Washington, 394 F.2d 125 (9th Cir. 1968) (same). Petitioner may correct this 2 | deficiency in his First Amended Petition. 3 ORDER 4 Accordingly, IT IS ORDERED: 5 1. Petitioner is GRANTED thirty days (30) from the date of service of this Order in which 6 to file a First Amended Petition. 7 2. Petitioner may also file a Notice of Voluntary Dismissal if he does not believe he can cure 8 the deficiencies identified above. 9 3. If Petitioner fails to timely file a First Amended Petition the undersigned will recommend 10 the Court dismiss the petition for the reasons set forth here and/or for Petitioner’s failure 11 to prosecute this action. 12 'S | Dated: _ January 31,2022 Mile. Wh. foareh Zaskth 14 HELENA M. BARCH-KUCHTA UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28