Warshaw v. Covello ( 2019 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 CHRISTOPHER D. WARSAW, Case No.: 19cv1578 CAB (MDD) 12 Petitioner, ORDER: (1) DENYING IN FORMA 13 v. PAUPERIS APPLICATION AS MOOT AND 14 PATRICK COVELLO, Warden, 15 Respondent. (2) DISMISSING CASE WITHOUT PREJUDICE AND WITH LEAVE TO 16 AMEND 17 18 Petitioner, a state prisoner proceeding pro se, has filed a Petition for Writ of 19 Habeas Corpus pursuant to 28 U.S.C. § 2254. 20 REQUEST TO PROCEED IN FORMA PAUPERIS 21 On August 23, 2019, Petitioner filed a request to proceed in forma pauperis. (ECF 22 No. 2.) Petitioner then submitted the $5.00 filing fee on September 4, 2019. (ECF No. 23 3.) Because Petitioner has paid the filing fee, the Court DENIES Petitioner’s application 24 to proceed in forma pauperis as moot. 25 FAILURE TO STATE A COGNIZABLE CLAIM ON FEDERAL HABEAS 26 The Petition must be dismissed because, in accordance with Rule 4 of the rules 27 governing § 2254 cases, Petitioner has failed to allege that his state court conviction or 28 sentence violates the Constitution of the United States. 1 Title 28, United States Code, § 2254(a), sets forth the following scope of review 2 for federal habeas corpus claims: 3 The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an application for a writ of habeas 4 corpus in behalf of a person in custody pursuant to the 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 6 United States. 7 8 28 U.S.C. § 2254(a) (emphasis added). See Hernandez v. Ylst, 930 F.2d 714, 719 (9th 9 Cir. 1991); Mannhalt v. Reed, 847 F.2d 576, 579 (9th Cir. 1988); Kealohapauole v. 10 Shimoda, 800 F.2d 1463, 1464-65 (9th Cir. 1986). Thus, to present a cognizable federal 11 habeas corpus claim under § 2254, a state prisoner must allege both that he is in custody 12 pursuant to a “judgment of a State court,” and that he is in custody in “violation of the 13 Constitution or laws or treaties of the United States.” See 28 U.S.C. § 2254(a). 14 Here, Petitioner claims that he received a Rule Violation Report for alleged 15 misconduct in prison and argues that prison officials failed to adhere to proper procedures 16 during the subsequent Rule Violations Report Hearing. (See Pet. at 1-2, ECF No. 1.) He 17 further argues that the prison Appeals Coordinator is retaliating against him and violating 18 his First Amendment rights by failing to process his inmate grievance appeal. (Id.) In no 19 way, however, does Petitioner claim he is “in custody in violation of the Constitution or 20 laws or treaties of the United States.” 28 U.S.C. § 2254 (emphasis added).1 21 22 23 1 The Court notes that challenges to the fact or duration of confinement are brought by petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254; challenges to 24 conditions of confinement are brought pursuant to the Civil Rights Act, 42 U.S.C. 25 § 1983. See Preiser v. Rodriguez, 411 U.S. 475, 488-50 (1973). When a state prisoner is challenging the very fact or duration of his physical imprisonment, and the relief he seeks 26 is a determination that he is entitled to immediate release or a speedier release from that 27 imprisonment, his sole federal remedy is a writ of habeas corpus. Id. at 500. On the other hand, a § 1983 action is a proper remedy for a state prisoner who is making a 28 1 Further, the Court notes that Petitioner cannot simply amend his Petition to state a 2 federal habeas claim and then refile the amended petition in this case. He must exhaust 3 state judicial remedies before bringing his claims via federal habeas. State prisoners who 4 wish to challenge their state court conviction must first exhaust state judicial remedies. 5 28 U.S.C. § 2254(b), (c); Granberry v. Greer, 481 U.S. 129, 133-34 (1987). To exhaust 6 state judicial remedies, a California state prisoner must present the California Supreme 7 Court with a fair opportunity to rule on the merits of every issue raised in his or her 8 federal habeas petition. See 28 U.S.C. § 2254(b), (c); Granberry, 481 U.S. at 133-34. 9 Moreover, to properly exhaust state court judicial remedies a petitioner must allege, in 10 state court, how one or more of his or her federal rights have been violated. The Supreme 11 Court in Duncan v. Henry, 513 U.S. 364 (1995) reasoned: “If state courts are to be given 12 the opportunity to correct alleged violations of prisoners’ federal rights, they must surely 13 be alerted to the fact that the prisoners are asserting claims under the United States 14 Constitution.” Id. at 365-66 (emphasis added). For example, “[i]f a habeas petitioner 15 wishes to claim that an evidentiary ruling at a state court trial denied him the due process 16 of law guaranteed by the Fourteenth Amendment, he must say so, not only in federal 17 court, but in state court.” Id. (emphasis added). 18 Additionally, the Court cautions Petitioner that under the Antiterrorism and 19 Effective Death Penalty Act of 1996, a one-year period of limitation shall apply to a 20 petition for a writ of habeas corpus by a person in custody pursuant to the judgment of a 21 State court. The limitation period shall run from the latest of: 22 (A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for 23 seeking such review; 24 (B) the date on which the impediment to filing an 25 application created by State action in violation of the 26 27 his custody. Id. at 499; McIntosh v. United States Parole Comm’n, 115 F.3d 809, 811-12 28 1 Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action; 2 3 (C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has 4 been newly recognized by the Supreme Court and made 5 retroactively applicable to cases on collateral review; or 6 (D) the date on which the factual predicate of the claim or 7 claims presented could have been discovered through the exercise of due diligence. 8 9 28 U.S.C. § 2244(d)(1)(A)-(D) (West Supp. 2002). 10 The Court also notes that the statute of limitations does not run while a properly 11 filed state habeas corpus petition is pending. 28 U.S.C. § 2244(d)(2); see Nino v. Galaza, 12 183 F.3d 1003, 1006 (9th Cir. 1999). But see Artuz v. Bennett, 531 U.S. 4, 8 (2000) 13 (holding that “an application is ‘properly filed’ when its delivery and acceptance [by the 14 appropriate court officer for placement into the record] are in compliance with the 15 applicable laws and rules governing filings.”). However, absent some other basis for 16 tolling, the statute of limitations does run while a federal habeas petition is pending. 17 Duncan v. Walker, 533 U.S. 167, 181-82 (2001). 18 CONCLUSION 19 Accordingly, the Court DENIES the request to proceed in forma pauperis as moot 20 and DISMISSES the case without prejudice and with leave to amend. To have the case 21 reopened, Petitioner must, no later than November 12, 2019, file a First Amended 22 Petition that cures the pleading deficiency outlined above. For Petitioner’s convenience, 23 / / / / / 24 / / / / / 25 / / / / / 26 / / / / / 27 / / / / / 28 / / / / / 1 || the Clerk of Court shall attach to this Order a form in forma pauperis application and a 2 || blank habeas petition form. 3 IT IS SO ORDERED. 4 ||Dated: September 6, 2019 € ZL 5 Hon. Cathy Ann Bencivengo 6 United States District Judge 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28