Sundberg v. State of California ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 KELLY FRITHIOF SUNDBERG, Case No.: 3:22-cv-1897-CAB-BLM 12 Petitioner, ORDER: (1) GRANTING 13 v. APPLICATION TO PROCEED IN FORMA PAUPERIS AND (2) 14 PATTON STATE HOSPITAL, et al., DISMISSING PETITION WITHOUT 15 Respondents. PREJUDICE 16 17 Petitioner, a proceeding pro se and currently in the custody of Patton State Hospital,1 18 has submitted a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254, together 19 with a request to proceed in forma pauperis. ECF Nos. 1 & 2. 20 REQUEST TO PROCEED IN FORMA PAUPERIS 21 According to Petitioner’s trust account statement, he has insufficient on account at 22 the California institution in which he is presently confined to pay the $5.00 filing fee. See 23 ECF No. 2 at 4. Thus, the Court GRANTS Petitioner’s application to proceed in forma 24 pauperis and allows Petitioner to prosecute the above-referenced action without being 25 26 1 Based on a previous petition filed by Petitioner, it appears Petitioner was found “not guilty by reason 27 of insanity” in criminal proceedings which took place in San Diego Superior Court in 1999 and has been confined to Patton State Hospital since then. See ECF No. 1 at 2; see also Sundberg v Oreol, Civ. Case 28 1 required to prepay fees or costs and without being required to post security. The Clerk of 2 the Court shall file the Petition for Writ of Habeas Corpus without prepayment of the filing 3 fee. 4 FAILURE TO STATE A COGNIZABLE CLAIM 5 The Petition, however, must be dismissed because Petitioner has failed to allege that 6 his state court conviction or continued detention violates the Constitution of the United 7 States. Title 28, United States Code, § 2254(a), sets forth the following scope of review for 8 federal habeas corpus claims: 9 The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an application for a writ of habeas 10 corpus in behalf of a person in custody pursuant to the judgment 11 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 12 States. 13 14 28 U.S.C. § 2254(a) (emphasis added). See Hernandez v. Ylst, 930 F.2d 714, 719 (9th Cir. 15 1991); Mannhalt v. Reed, 847 F.2d 576, 579 (9th Cir. 1988); Kealohapauole v. Shimoda, 16 800 F.2d 1463, 1464-65 (9th Cir. 1986). Thus, to present a cognizable federal habeas 17 corpus claim under § 2254, a state prisoner must allege both that he is in custody pursuant 18 to a “judgment of a State court,” and that he is in custody in “violation of the Constitution 19 or laws or treaties of the United States.” See 28 U.S.C. § 2254(a). 20 Here, Petitioner has not alleged he is in custody in violation of the U.S. Constitution, 21 laws or treaties of the United States. Instead, Petitioner merely claims that he “is not a 22 threat to myself of others so legally they cannot keep me. I am 67 years old. I have not had 23 one incident in 25 years of incarceration. It is medical malpractice to keep my 24 incarcerated.” ECF No. 1 at 2. This is insufficient to state a cognizable claim on federal 25 habeas. 26 Further, the Court notes that Petitioner cannot simply amend his Petition to state a 27 federal claim and then refile the amended petition in this case. He must exhaust state 28 judicial remedies before bringing his claims via federal habeas. State prisoners who wish 1 to challenge their state court conviction must first exhaust state judicial remedies. 28 U.S.C. 2 § 2254(b), (c); Granberry v. Greer, 481 U.S. 129, 133–34 (1987). To exhaust state judicial 3 remedies, a California state prisoner must present the California Supreme Court with a fair 4 opportunity to rule on the merits of every issue raised in his or her federal habeas petition. 5 See 28 U.S.C. § 2254(b), (c); Granberry, 481 U.S. at 133–34. Moreover, to properly 6 exhaust state court judicial remedies a petitioner must allege, in state court, how one or 7 more of his or her federal rights have been violated. The Supreme Court in Duncan v. 8 Henry, 513 U.S. 364 (1995) reasoned: “If state courts are to be given the opportunity to 9 correct alleged violations of prisoners’ federal rights, they must surely be alerted to the fact 10 that the prisoners are asserting claims under the United States Constitution.” Id. at 365–66 11 (emphasis added). For example, “[i]f a habeas petitioner wishes to claim that an evidentiary 12 ruling at a state court trial denied him the due process of law guaranteed by the Fourteenth 13 Amendment, he must say so, not only in federal court, but in state court.” Id. (emphasis 14 added). 15 Additionally, the Court cautions Petitioner that under the Antiterrorism and 16 Effective Death Penalty Act of 1996, a one-year period of limitation shall apply to a petition 17 for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. 18 The limitation period shall run from the latest of: 19 (A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for 20 seeking such review; 21 (B) the date on which the impediment to filing an 22 application created by State action in violation of the 23 Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action; 24 25 (C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been 26 newly recognized by the Supreme Court and made retroactively 27 applicable to cases on collateral review; or 28 1 (D) the date on which the factual predicate of the claim or claims presented could have been discovered through the 2 exercise of due diligence. 3 4 28 U.S.C. § 2244(d)(1)(A)–(D) (West Supp. 2002). While the statute of limitations does 5 not run while a properly filed state habeas corpus petition is pending, see Nino v. Galaza, 6 183 F.3d 1003, 1006 (9th Cir. 1999), absent some other basis for tolling, the statute of 7 limitations does run while a federal habeas petition is pending. Duncan v. Walker, 533 U.S. 8 167, 181–82 (2001). 9 PETITION MAY BE SUCCESSIVE 10 In addition, the Court notes that this is not the first time Petitioner has attempted to 11 challenge his custody in Patton State Hospital via federal petition for writ of habeas corpus. 12 On December 30, 2016, Petitioner filed in this Court a Petition for Writ of Habeas Corpus 13 in case No. 3:16-cv-3127. See Pet. Sundberg v Oreol, Civ. Case No. 3:16-cv3127-WQH-AGS 14 (S.D. Cal.), ECF No. 1. In that petition, Petitioner challenged his detention at Patton State 15 Hospital as well. See id. at 1–2. On March 28, 2019, this Court dismissed the petition 16 because it had been filed after the expiration of the one-year statute of limitations. See 17 Order, Sundberg v. Oreol, 16cv1372-WQH-AGS, ECF No. 62 (S.D. Cal. Mar. 28, 2019). 18 Petitioner appealed that determination and on May 1, 2020, the Ninth Circuit Court of 19 Appeals affirmed this Court’s decision. See Order, Sundberg v. Oreol, No. 19-55371 (9th 20 Cir. May 1, 2020). 21 While not entirely clear from the face of the instant Petition, it appears Petitioner 22 seeking to challenge the sentence imposed as a result the same conviction he challenged in 23 his prior federal habeas petition. To do so, he must obtain an order from the appropriate 24 court of appeals authorizing the district court to consider a successive petition, the petition 25 may not be filed in the district court. See 28 U.S.C. § 2244(b)(3)(A); see also Burton v. 26 Stewart, 549 U.S. 147, 153 (2007) (a petition is successive where it challenges “the same 27 custody imposed by the same judgment of a state court” as a prior petition). A successive 28 application is permissible “only if it rests on a new rule of constitutional law, facts that 1 || were previously unavailable, or facts that would be sufficient to show constitutional error 2 ||in the petitioner's conviction.” 28 U.S.C. § 2244(b)(2). “Even if a petitioner can 3 demonstrate that he qualifies for one of these exceptions, he must seek authorization from 4 || the court of appeals before filing his new petition with the district court.” Woods v. Carey, 5 ||525 F.3d 886, 888 (9th Cir. 2008). 6 CONCLUSION 7 Based on the foregoing, the Court GRANTS Petitioner’s application to proceed in 8 || forma pauperis and DISMISSES this action without prejudice because Petitioner has failed 9 ||to state a cognizable federal claim and the Petition appears to be successive. To have this 10 || case reopened, Petitioner must, no later than January 15, 2023, file a First Amended 11 || Petition that cures the pleading deficiencies set forth above. For Petitioner’s convenience, 12 ||a blank First Amended Petition form and a blank Ninth Circuit Application for Leave to 13 || File Second or Successive Petition form are included with this Order. 14 IT IS SO ORDERED. 15 |}Dated: December 5, 2022 € Z 16 Hon. Cathy Ann Bencivengo 17 United States District Judge 18 19 20 21 22 23 24 25 26 27 28