Dunsmore v. Gore ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 DARRYL DUNSMORE, Case No.: 3:20-cv-01609-LAB-WVG 12 Petitioner, ORDER: (1) GRANTING 13 v. APPLICATION TO PROCEED IN FORMA PAUPERIS AND (2) 14 GORE, DISMISSING CASE WITHOUT 15 Respondent. PREJUDICE 16 17 On August 17, 2020, Petitioner, a state prisoner proceeding pro se, submitted a 18 Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241. (ECF No. 1.) On 19 September 23, 2020, the Court dismissed this case without prejudice because Petitioner 20 failed to satisfy the filing fee requirement. (ECF No. 3.) In the dismissal order, Petitioner 21 was notified that in order to have this case reopened he had to either pay the filing fee or 22 provide adequate proof of his inability to pay, no later than October 28, 2020. (See id. at 23 1.) 24 REQUESTS TO PROCEED IN FORMA PAUPERIS 25 On October 5, 2020, Petitioner filed a request to proceed in forma pauperis. (ECF 26 No. 3.) He filed a second application to proceed in forma pauperis on October 22, 2020. 27 (ECF No. 5.) In his October 5, 2020 application, Petitioner included a copy of his trust 28 account statement, indicating a Petitioner has $ 0.33 on account at the San Diego County 1 Jail, where he is presently confined. (See id. at 7.) Petitioner cannot afford the $5.00 2 filing fee. 3 Thus, the Court GRANTS Petitioner’s application to proceed in forma pauperis 4 and allows Petitioner to prosecute the above-referenced action without being required to 5 prepay fees or costs and without being required to post security. The Clerk of the Court 6 shall file the Petition for Writ of Habeas Corpus without prepayment of the filing fee. 7 Petitioner’s October 22, 2020 application to proceed in forma pauperis (ECF No. 5), 8 which was not accompanied by a copy of Petitioner’s trust account statement, is 9 DENIED as moot. 10 PETITION MUST BE DISMISSED 11 The Petition must be dismissed, however, because 28 U.S.C. § 2241 is the 12 improper vehicle for Petitioner’s challenges to his state court conviction and sentence. In 13 his Petition, Petitioner states that he was convicted in San Diego Superior Court Case No. 14 SCS 197057. (Pet., ECF No. 1 at 1.) In his grounds for relief, Petitioner contends he was 15 sentenced in case number SCS 179057 on March 9, 2004. (Id. at 4.) He argues that the 16 execution and calculation of that sentence was improper, in violation of his plea 17 agreement and therefore in violation of his due process rights. (See id. at 4–6.) 18 The Ninth Circuit has held that 28 U.S.C. § 2254 is the “exclusive vehicle for a 19 habeas petition by a state prisoner in custody pursuant to a state court judgment, even 20 when the petitioner is not challenging his underlying state court conviction . . . § 2254 is 21 properly seen as a limitation on the general grant of habeas authority in § 2241 that is 22 triggered by a state prisoner who is in custody pursuant to a state court judgment.” White 23 v. Lambert, 370 F.3d 1002, 1010 (9th Cir. 2004), overruled on other grounds by Hayward 24 v. Marshall, 603 F.3d 546 (9th Cir. 2010). Because it appears Petitioner is in custody 25 / / / 26 / / / 27 / / / 28 / / / 1 || pursuant to a state court judgment, “28 U.S.C. § 2254 is the proper jurisdictional basis for 2 ||his habeas petition.” Jd. Accordingly, the Petition is DISMISSED without prejudice. 3 CONCLUSION 4 Based on the foregoing, the Court GRANTS Petitioner’s October 5, 2020 5 || application to proceed in forma paupers (ECF No. 3) and DENIES his duplicative 6 || October 22, 2020 in forma pauperis application (ECF No. 5) as MOOT. Further, the 7 || Petition is DISMISSED without prejudice because 28 U.S.C. § 2241 is the improper 8 || vehicle for challenging Petitioner’s state court conviction and sentence. The Clerk shall 9 || close the case. 10 1] IT IS SO ORDERED. 12 13 || DATED: November 2, 2020 ( dtu 4 □□ 14 Hon. Larry Alan Burns Chief United States District Judge 15 16 17 18 19 20 21 22 || 24 ll The Court notes that Petitioner has filed numerous petitions for writ of habeas corpus 25 || pursuant to 28 U.S.C. § 2254 in this Court, challenging various convictions. On September 8, 2020, Petitioner filed a petition for writ of habeas corpus, pursuant to 28 6 U.S.C. § 2254, challenging his conviction in SCS179057, the same conviction he seeks to 27 || challenge in the instant § 2241 Petition. See Dunsmore v. Gore, 20-cv-1773-CAB-AGS, 2g ECF No. 1. On October 14, 2020, the Court issued an order to respond in that case, and it is proceeding. (See id., ECF No. 5.)