(HC) Stovall v. Covello ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MELVIN STOVALL, No. 2:20-cv-1717 KJN P 12 Petitioner, 13 v. ORDER 14 PATRICK COVELLO, Acting Warden,1 15 Respondent. 16 17 Petitioner is a state prisoner, proceeding without counsel. On August 27, 2020, petitioner 18 filed a document styled, “Petition for Preliminary Injunctive Relief, Temporary Restraining 19 Order, Appointment of Counsel, Accelerated Release.” (ECF No. 1.) Petitioner states that he is a 20 67 year-old African American who is most vulnerable to the Coronavirus and the inhalation of 21 toxic smoke from the California wildfires. He claims that he has served 26 years of a 25 year-to- 22 life sentence under California’s Three Strikes Law, and his current conviction was for a 23 nonviolent, nonserious drug offense. Petitioner seeks accelerated release from prison on medical 24 grounds under whatever form of supervision the court requires. The undersigned construes 25 petitioner’s filing as a motion for compassionate release. 26 27 1 The current Acting Warden of Mule Creek State Prison is Patrick Covello, who is substituted as respondent in this matter. Fed. R. Civ. P. 25(d); see Brittingham v. United States, 982 F.2d 378, 28 379 (9th Cir. 1992). 1 In order to commence a federal habeas action, petitioner must file a petition for writ of 2 habeas corpus as required by Rule 3 of the Rules Governing Section 2254 cases, and petitioner 3 must either pay the required filing fee or file an application requesting leave to proceed in forma 4 pauperis. See 28 U.S.C. §§ 1914(a), 1915(a). A petition for habeas corpus involves an attack on 5 petitioner’s conviction for which he is being held in custody, and petitioner must seek release 6 from his conviction because of a violation of the Constitution of the United States, or in the rare 7 case, a federal law, which applies to the state proceedings. While the court may address ancillary 8 matters to the petition, it is necessary that petitioner provide the basis for habeas jurisdiction in 9 his petition. 10 The court will not issue any orders granting or denying relief until an action has been 11 properly commenced. For the purpose of preparing the petition, the court advises petitioner that a 12 federal statute relating to release of federal prisoners, i.e., persons convicted in federal court as 13 opposed to state court, does not state a claim relating to a state court conviction. 14 Therefore, petitioner’s motion is denied without prejudice. Petitioner is provided the 15 opportunity to file his petition, and to submit an application requesting leave to proceed in forma 16 pauperis or to submit the appropriate filing fee. 17 In accordance with the above, IT IS HEREBY ORDERED that: 18 1. Petitioner’s August 27, 2020 motion (ECF No. 1) is denied without prejudice; 19 2. Within thirty days,2 petitioner shall file a petition that complies with the requirements 20 of the Rules Governing Section 2254 Cases, the Federal Rules of Civil Procedure, and the Local 21 Rules of Practice; the petition must bear the docket number assigned this case. Petitioner shall 22 also submit, within thirty days from the date of this order, the application to proceed in forma 23 pauperis on the form provided by the Clerk of Court, or the filing fee in the amount of $5.00. 24 Petitioner’s failure to comply with this order will result in a recommendation that this matter be 25 2 By setting this deadline, the court makes no finding or representation that the petition is not 26 subject to dismissal as untimely. See Sossa v. Diaz, 729 F.3d 1225, 1231-35 (9th Cir. 2015). Petitioner is advised that a one-year statute of limitations is applicable to all claims presented in a 27 federal habeas corpus petition. See 28 U.S.C. § 2244(d)(1); see also Mardesich v. Cate, 668 F.3d 1164 (9th Cir. 2012) (holding that the one-year statute of limitations applied to each claim in a 28 habeas petition on an individual basis). 2 OU CINGIN REVUE PO Oe PT AY MV VI 1 | dismissed; and 2 3. The Clerk of the Court is directed to send petitioner the court’s form for filing a 3 | petition for writ of habeas corpus, and the application to proceed in forma pauperis by a prisoner. 4 | Dated: August 31, 2020 Fens Arn 6 KENDALL J. NE UNITED STATES MAGISTRATE JUDGE 7 || /stovl717.101a.cvd 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28