Carroll v. Pollard ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE SOUTHERN DISTRICT OF CALIFORNIA 10 TREMAYNE CARROLL, Case No.: 20-cv-00010-BAS (BGS) 11 Petitioner, ORDER DISMISSING SECOND 12 AMENDED PETITION WITHOUT v. PREJUDICE AND WITHOUT 13 LEAVE TO AMEND RALPH DIAZ, Secretary, 14 [ECF No. 10] Respondent. 15 16 On January 2, 2020, Petitioner, a state prisoner incarcerated at the R.J. Donovan 17 Correctional Facility (“RJD”) in San Diego, California, and proceeding pro se, submitted 18 a Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (“Petition”). (ECF 19 No. 1.) On January 16, 2020, the Court dismissed the Petition without prejudice and with 20 leave to amend for failure to state a cognizable claim on habeas corpus because Petitioner 21 failed to allege that success on the claims presented, which included the restoration of 22 custody credits lost through prison disciplinary actions, would have necessarily impacted 23 the length of his confinement. (See generally, ECF No. 4.) Petitioner was instructed that 24 if he sought to challenge the loss of time or credits affecting the length or fact of his 25 custody, he must file a First Amended Petition on or before March 9, 2020. (See id.) 26 On January 31, 2020, Petitioner filed a First Amended Petition (“FAP”) entitled 27 “Petition for Writ of Mandate and Petition for Preliminary Injunctive Relief, and 28 Temporary Restraining Order, (TRO) & Motion for Counsel, 28 U.S.C. §1915(g) Motion 1 to Compel.” (ECF No. 5 at 1.) Upon review, the Court noted that Petitioner failed to 2 submit either the required $5.00 filing fee or a request to proceed in forma pauperis (“IFP”) 3 and again failed to state specifics concerning the rules violations or loss of credits or allege 4 that any such relief, if granted, would affect the length or fact of his custody. (See ECF 5 No. 6 at 2.) Instead, the Court noted that Petitioner advanced numerous challenges arising 6 from the state court denial of his resentencing petition under Proposition 36 which, given 7 that Petitioner’s state court conviction occurred in the Los Angeles County Superior Court, 8 should customarily be heard in the Central District of California, Western Division, where 9 that superior court is located, rather than the Southern District, which contains the 10 correctional institution where Petitioner is currently incarcerated. (See id. at 2–3 (citing 11 Braden v. 30th Judicial Circuit Court of Kentucky, 410 U.S. 484, 497, 499 n.15 (1973)).) 12 Accordingly, the Court dismissed the FAP and directed: “If Petitioner wishes to challenge 13 the loss of time or credits affecting the length or fact of his sentence of which he was 14 deprived in this District while housed at RJD,” any Second Amended Petition must be filed 15 on or before April 6, 2020, that “sets forth a cognizable habeas corpus claim along with the 16 filing fee or a request to proceed IFP.” (Id. at 3.) The Court further instructed: “If 17 Petitioner wishes to challenge the length or duration of his confinement based on a 18 challenge to his criminal conviction or Proposition 36 decision, he may file a § 2254 19 Petition in the Central District of California.” (Id.) 20 Petitioner thereafter filed an Objection to the Court’s ruling (see ECF No. 8), which 21 the Court construed as a Motion for Extension of Time to comply with the Court’s February 22 10, 2020 Order. (See ECF No. 9 at 23.) On June 25, 2020, the Court granted an extension 23 of time and instructed Petitioner that the Second Amended Petition must “comply with the 24 directions and conform with the limitations set forth in the Court’s February 10, 2020 25 Order, and be filed with the Clerk of the Court, together with the $5 filing fee and/or a 26 properly supported Motion to Proceed IFP,” on or before August 10, 2020 and cautioned: 27 “Should Carroll fail to follow these directions, his habeas case will remain dismissed 28 without prejudice and he will be granted no further leave to amend in that case.” (Id.) 1 On July 28, 2020, Petitioner filed a Second Amended Petition (“SAP”). (See ECF 2 No. 10.) It again appears, as noted with respect to both the Petition and the FAP, that 3 Petitioner fails to offer specifics in the SAP with respect to rules violations suffered or loss 4 of credits and does not allege that such relief, if granted, would result in his earlier or 5 immediate release from imprisonment. (See generally, id.; see also ECF No. 4 at 3; ECF 6 No. 6 at 2.) Instead, upon review, Petitioner again appears to raise challenges to the denial 7 of his Proposition 36 resentencing petition, additionally claims that Proposition 47 applies 8 to his conviction, and asserts a claim of false imprisonment stemming from his treatment 9 by the CDCR during confinement. (See e.g., ECF No. 10 at 6–9.) In the SAP, Petitioner 10 indicates that he is challenging his April 1999 conviction in Los Angeles County Superior 11 Court in Case No. BA173778. (See id. at 1.) As previously noted, Petitioner was 12 previously directed that challenges to his Los Angeles County criminal conviction or 13 Proposition 36 decision should be filed in the district in which he was convicted, which 14 again, in this case is the Central District of California, Western Division and not the 15 Southern District of California. (See ECF No. 6 at 3.) 16 Petitioner has also once again failed to submit the filing fee or a request to proceed 17 IFP, despite the specific and repeated direction in both the February 10, 2020 and June 25, 18 2020 Orders. See Local Rule 3(a), 28 U.S.C. foll. § 2254. However, even if Petitioner 19 were to comply with the filing fee requirement, this action remains subject to dismissal 20 without prejudice and without leave to amend for the reasons outlined in the instant Order. 21 In view of Petitioner’s failure to substantively respond to the Orders, the SAP 22 is DISMISSED without prejudice and without leave to amend.1 If Petitioner seeks to 23 pursue his claims regarding the loss of time or credits affecting the length or fact of his 24 sentence of which he was deprived in this District while housed at RJD, he may file a new 25 habeas case in this Court. If, however, Petitioner seeks to pursue his challenge to the denial 26 1 To the extent Petitioner again advances challenges to the conditions of his confinement, the SAP also does not appear amenable to conversion to § 1983 for several of the reasons previously noted in both the 27 January 16, 2020 and February 10, 2020 Orders, including that it might expose Petitioner to the PLRA and because it would be duplicative to Petitioner’s pending § 1983 action. (See ECF No. 4 at 3–4; ECF 28 1 his resentencing petition under Proposition 36, he should file an action in the Central 2 || District of California. Because the instant action is dismissed without leave to amend, 3 Petitioner will not be permitted to file anything further in this case and the Clerk 4 ||is DIRECTED to close the case. 5 IT IS SO ORDERED. 6 f {| 7 DATED: August 10, 2020 ( yillag (~ Ayphaa 6 8 United States District Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28