(HC) Barnes v. Ninth Circuit Judges ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ANTOINE DESHAWN BARNES, No. 1:23-cv-00691-HBK (HC) 12 Petitioner, FINDINGS AND RECOMMENDATION TO DISMISS PETITION FOR FAILURE TO 13 v. STATE A CLAIM AND FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES1 14 NINTH CIRCUIT JUDGES, NINTH CIRCUIT PUBLIC DEFENDERS FOURTEEN-DAY OBJECTION PERIOD 15 OFFICE, (Doc. No. 1) 16 Respondent. ORDER DIRECTING CLERK OF COURT TO 17 ASSIGN DISTRICT JUDGE 18 19 Petitioner Antoine Deshawn Barnes (“Petitioner”), a state prisoner, is proceeding on his 20 pro se petition for writ of habeas corpus under 28 U.S.C. § 2254 docketed on April 20, 2023. 21 (Doc. No. 1, “Petition”). This matter is now before the Court for preliminary review. See Rules 22 Governing § 2254 Cases, Rule 4; 28 U.S.C. § 2243. For the reasons set forth below, the Court 23 recommends that the Petition be DISMISSED without prejudice for failure to name a proper 24 respondent, failure to state a cognizable habeas claim, and failure to exhaust. 25 I. BACKGROUND 26 To the extent discernable, Petitioner seeks to “file hate crimes charges per Assembly Bill 27 1 This matter was referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302 28 (E.D. Cal. 2022). 1 1947 on Judge John Oglesby,” the Superior Court Judge who reviewed and denied Petitioner’s 2 state petition for writ of habeas corpus. (Doc. No. 1 at 3). More specifically, Petitioner accuses 3 Judge Oglesby of racial profiling and abuse of authority for denying his state habeas petition. 4 (Id.). Petitioner also claims, inter alia, that he “should be released due to the passage of Senate 5 Bills 10, 1054, 81, and 1393, Assembly Bills 2942, 1509, and 483, Proposition 47 and the cases 6 Gamble v. United States and In re Gadlin.” (Id. at 8). Petitioner seeks appointment of a federal 7 public defender per the “Rise Act.” (Id. at 4). As relief, Petitioner asks “[t]o have [Ninth] Circuit 8 Court release [him] on Senate Bill 1054 O.R. [sic] release to vacate ‘all’ enhancements, prison 9 priors, apply new laws P.C. 1170.03, P.C. 1170.18.” (Id. at 6). 10 II. APPLICABLE LAW AND ANALYSIS 11 Rule 4 of the Rules Governing § 2254 Cases requires the Court to make a preliminary 12 review of each petition for writ of habeas corpus. The Court must dismiss a petition “[i]f it 13 plainly appears from the petition . . . that the petitioner is not entitled to relief.” Rule 4 of the 14 Rules Governing § 2254 Cases; see also Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Cir. 1990). 15 The Advisory Committee Notes to Rule 8 indicate that the Court may dismiss a petition for writ 16 of habeas corpus, either on its own motion under Rule 4, pursuant to the respondent’s motion to 17 dismiss, or after an answer to the petition has been filed. Courts have “an active role in 18 summarily disposing of facially defective habeas petitions” under Rule 4. Ross v. Williams, 896 19 F.3d 958, 968 (9th Cir. 2018) (citation omitted). However, a petition for habeas corpus should 20 not be dismissed without leave to amend unless it appears that no tenable claim for relief can be 21 pleaded were such leave granted. Jarvis v. Nelson, 440 F.2d 13, 14 (9th Cir. 1971). 22 A. Failure to Name Proper Respondent – Lack of Jurisdiction 23 A petitioner seeking habeas corpus relief must name the officer having custody of him as 24 the respondent to the petition. Rule 2(a) of the Rules Governing § 2254 Cases; Ortiz-Sandoval v. 25 Gomez, 81 F.3d 891, 894 (9th Cir. 1996); Stanley v. California Supreme Court, 21 F.3d 359, 360 26 (9th Cir. 1994). Normally, the person having custody of an incarcerated petitioner is the warden 27 of the prison in which the petitioner is incarcerated because the warden has "day-to-day control 28 over" the petitioner. Brittingham v. United States, 982 F.2d 378, 379 (9th Cir. 1992); see also 1 Stanley, 21 F.3d at 360. Alternatively, the chief officer in charge of penal institutions is also 2 appropriate. Ortiz, 81 F.3d at 894; Stanley, 21 F.3d at 360. Where a petitioner is on probation or 3 parole, the proper respondent is his probation or parole officer and the official in charge of the 4 parole or probation agency or correctional agency. Id. 5 Here, Petitioner names “Ninth Circuit Judges” and the “Ninth Circuit Public Defender’s 6 Office” as respondents in this action. (See generally Doc. No. 1). Petitioner’s failure to name a 7 proper respondent requires dismissal of his habeas petition for lack of jurisdiction. Stanley, 21 8 F.3d at 360; Olson v. California Adult Auth., 423 F.2d 1326, 1326 (9th Cir. 1970); see also 9 Billiteri v. United States Bd. Of Parole, 541 F.2d 938, 948 (2nd Cir. 1976). The undersigned 10 finds it would be futile to direct Petitioner to amend the Petition to name the proper respondent 11 because, as discussed below, the Petition fails to state a cognizable habeas claim and Petitioner 12 has not exhausted his state administrative remedies to the extent the Petition identifies any claim. 13 B. Failure to State a Cognizable Claim 14 The basic scope of habeas corpus is prescribed by statute. Title 28 U.S.C. § 2241(c)(3) 15 provides that the writ of habeas corpus shall not extend to a prisoner unless “[h]e is in custody in 16 violation of the Constitution or laws or treaties of the United States.” The Supreme Court has 17 held that “the essence of habeas corpus is an attack by a person in custody upon the legality of 18 that custody . . .” Preiser v. Rodriguez, 411 U.S. 475, 484 (1973). If a prisoner’s claim “would 19 necessarily demonstrate the invalidity of confinement or its duration,” a habeas petition is the 20 appropriate avenue for the claim. Wilkinson v. Dotson, 544 U.S. 74, 82 (2005 21 Here, it is clear that relief on Petitioner’s claims would not lead to his immediate or earlier 22 release. See Nettles v. Grounds, 830 F.3d 922, 935 (9th Cir. 2016) (if a favorable judgment for 23 the petitioner would not “necessarily lead to his immediate or earlier release from confinement,” a 24 habeas claim is not appropriate). Petitioner does not appear to directly challenge his conviction 25 or sentence. Rather, the gravamen of the Petition asserts claims of racial profiling and abuse of 26 discretion against a Superior Court Judge and seeks appointment of counsel. (Doc. No. 1 at 3-4). 27 Thus, Petitioner’s “claims” are clearly not cognizable via a petition for writ of habeas corpus. 28 Based on the foregoing, the undersigned recommends Petition be dismissed for failure to 1 state a cognizable claim, as it appears that no tenable claim for relief can be pleaded were such 2 leave granted. 3 C. Failure to Exhaust Administrative Remedies 4 A petitioner in state custody who wishes to proceed on a federal petition for a writ of 5 habeas corpus must exhaust state judicial remedies. See 28 U.S.C. § 2254(b)(1). Exhaustion is a 6 “threshold” matter that must be satisfied before the court can consider the merits of each claim. 7 Day v. McDonough, 547 U.S. 198, 205 (2006). The exhaustion doctrine is based on comity and 8 permits the state court the initial opportunity to resolve any alleged constitutional deprivations. 9 See Coleman v. Thompson, 501 U.S. 722, 731 (1991); Rose v. Lundy, 455 U.S. 509, 518 (1982). 10 To satisfy the exhaustion requirement, petitioner must provide the highest state court with a full 11 and fair opportunity to consider each claim before presenting it to the federal court. See 12 O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999); Duncan v. Henry, 513 U.S. 364, 365 (1995). 13 The burden of proving exhaustion rests with the petitioner. Darr v. Burford, 339 U.S. 200, 218 14 (1950) (overruled in part on other grounds by Fay v. Noia, 372 U.S. 391 (1963)). A failure to 15 exhaust may only be excused where the petitioner shows that “there is an absence of available 16 State corrective process” or “circumstances exist that render such process ineffective to protect 17 the rights of the applicant.” 28 U.S.C. § 2254(b)(1)(B)(i)-(ii). 18 Here, the Petition does not include sufficient information as to whether the asserted 19 grounds for relief were properly exhausted in the state courts. (Doc. No. 1 at 5). In the portion of 20 the Petition that asks whether he appealed or sought review in the California Supreme Court, 21 Petitioner cites only to his state petition for habeas corpus which was denied by the Superior 22 Court Judge he accuses of discrimination and abuse of discretion and to the instant petition, 23 which he initially filed with the Ninth Circuit and was subsequently transferred to this Court. 24 (Id.; Doc. No. 2). If Petitioner has not sought relief in the California Supreme Court on any of his 25 claims, the Court cannot proceed to the merits of his habeas claims. See 28 U.S.C. § 2254(b)(1). 26 Pursuant to Rule 201 of the Federal Rules of Evidence, the Court takes judicial notice of the 27 California Courts Appellate Courts Case Information online database, which identifies no state 28 supreme court cases filed and/or pending by Petitioner as of the date of these Findings and 1 Recommendation.2 Because it appears Petitioner has failed to exhaust his claims, the undersigned 2 recommends, in the alternative, that the district court dismiss the Petition because any grounds for 3 relief are unexhausted. If Petitioner has presented any claim to the California Supreme Court, he 4 should provide proof of this filing to the court in his objections to these Findings and 5 Recommendation. 6 III. CERTIFICATE OF APPEALABILITY 7 State prisoners in a habeas corpus action under § 2254 do not have an automatic right to 8 appeal a final order. See 28 U.S.C. § 2253(c)(1)(A); Miller-El v. Cockrell, 537 U.S. 322, 335-36 9 (2003). To appeal, a prisoner must obtain a certificate of appealability. 28 U.S.C. § 2253(c)(2); 10 see also R. Governing Section 2254 Cases 11 (requires a district court to issue or deny a 11 certificate of appealability when entering a final order adverse to a petitioner); Ninth Circuit Rule 12 22-1(a); United States v. Asrar, 116 F.3d 1268, 1270 (9th Cir. 1997). Where, as here, the court 13 denies habeas relief on procedural grounds without reaching the merits of the underlying 14 constitutional claims, the court should issue a certificate of appealability only “if jurists of reason 15 would find it debatable whether the petition states a valid claim of the denial of a constitutional 16 right and that jurists of reason would find it debatable whether the district court was correct in its 17 procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). “Where a plain procedural bar 18 is present and the district court is correct to invoke it to dispose of the case, a reasonable jurist 19 could not conclude either that the district court erred in dismissing the petition or that the 20 petitioner should be allowed to proceed further.” Id. Here, reasonable jurists would not find the 21 undersigned’s conclusion debatable or conclude that petitioner should proceed further. The 22 undersigned therefore recommends that a certificate of appealability not issue 23 Accordingly, it is ORDERED: 24 The Clerk of Court shall assign this case to a district judge for the purposes of reviewing 25 these findings and recommendations. 26 //// 27 2 https://appellatecases.courtinfo.ca.gov/search.cfm?dist=0 (search “Search by Party” for “Antoine Barnes” 28 and “Antoine Deshawn Barnes”). 1 Further, it is RECOMMENDED: 2 1. The Petition (Doc. No. 1) be DISMISSED WITHOUT PREJUDICE for failure to state 3 a cognizable claim and failure to exhaust administrative remedies. 4 2. Petitioner be denied a certificate of appealability. 5 NOTICE TO PARTIES 6 These findings and recommendations will be submitted to the United States district judge 7 | assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen (14) 8 | days after being served with these findings and recommendations, a party may file written 9 | objections with the court. The document should be captioned “Objections to Magistrate Judge’s 10 | Findings and Recommendations.” Parties are advised that failure to file objections within the 11 | specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 12 | 838-39 (Oth Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 13 Dated: _ June 6, 2023 oe Zh. Sareh Zackte 15 HELENA M. BARCH-KUCHTA 6 UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 23 24 25 26 27 28