Dionicio Cicspin Torrez, Jr. v. Clark ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 DIONICIO C. TORREZ, JR., Case No.: 22cv0082-GPC (AHG) 12 Petitioner, ORDER: 13 v. (1) CONSTRUING PETITION FOR 14 KEN CLARK, Warden, WRIT OF HABEAS CORPUS AS 15 Respondent. BROUGHT PURUSANT TO 28 U.S.C. § 2254, 16 17 (2) DENYING APPLICATION TO PROCEED IN FORMA PAUPERIS, 18 and 19 (3) DISMISSING ACTION WITHOUT 20 PREJUDICE 21 22 On January 5, 2022, Petitioner, a state prisoner proceeding pro se, filed a Petition 23 for a Writ of Habeas Corpus in the District Court for the Central District of California with 24 an attached application to proceed in forma pauperis. (ECF No. 1.) On January 13, 2022, 25 the action was transferred to this Court because although the Petition was on a federal 28 26 U.S.C. § 2241 habeas petition form, Petitioner was challenging a state court conviction 27 from the San Diego County Superior Court under 28 U.S.C. § 2254, and jurisdiction was 28 proper in the Southern District of California. (ECF No. 3 at 1-3.) 1 FORM OF ACTION 2 Because Petitioner is in state custody pursuant to the judgement of a state court, he 3 cannot proceed with a federal habeas petition under 28 U.S.C. § 2241, but must proceed, 4 if at all, under 28 U.S.C. § 2254. See White v. Lambert, 370 F.3d 1002, 1006-07 (9th Cir. 5 2004) (holding that section 2254 is the proper jurisdictional basis for a habeas petition 6 brought by an individual “in custody pursuant to a state court judgment.”), overruled on 7 other grounds by Hayward v. Marshall, 603 F.3d 546 (9th Cir. 2010). “Section 2254 is 8 properly understood as ‘in effect implement(ing) the general grant of habeas corpus 9 authority found in § 2241, as long as the person is in custody pursuant to the judgment of 10 a state court, and not in state custody for some other reason, such as pre-conviction custody, 11 custody awaiting extradition, or other forms of custody that are possible without a 12 conviction.’” Id. at 1006, quoting Walker v. O’Brien, 216 F.3d 626, 633 (7th Cir. 2000). 13 “By contrast, the general grant of habeas authority in § 2241 is available for challenges by 14 a state prisoner who is not in custody pursuant to a state court judgment-for example, a 15 defendant in pre-trial detention or awaiting extradition. In these situations, not covered by 16 the limitations in § 2254, the general grant of habeas authority provided by the Constitution 17 and § 2241 will provide jurisdiction for state prisoners’ habeas claims.” Id. 18 Accordingly, the Petition for a writ of habeas corpus filed in this action is construed 19 as brought pursuant to 28 U.S.C. § 2254. 20 APPLICATION TO PROCEED IN FORMA PAUPERIS 21 A request to proceed in forma pauperis made by a state prisoner must include a 22 certificate from the warden or other appropriate officer showing the amount of money or 23 securities Petitioner has on account in the institution. Rule 3(a)(2), 28 U.S.C. foll. § 2254; 24 Local Rule 3.2. Although Petitioner has attached a copy of a prison certificate to his 25 application it contains no financial information and is not certified. (See ECF No. 1 at 7.) 26 Because Petitioner has not provided the Court with the required financial information, the 27 Court DENIES the request to proceed in forma pauperis and DISMISSES the case without 28 prejudice. 1 CONCLUSION AND ORDER 2 The Petition is CONSTRUED as one brought pursuant to 28 U.S.C. § 2254 and 3 || Petitioner’s application to proceed in forma pauperis is DENIED without prejudice. To 4 ||have the case reopened, Petitioner must, no later than March 21, 2022, provide the Court 5 || with: (1) a copy of this Order together with the $5.00 filing fee; or (2) a copy of this 6 || Order together with adequate proof Petitioner cannot pay the $5.00 filing fee. The Clerk 7 ||of Court shall send Petitioner a blank Southern District of California in forma pauperis 8 || application which contains the proper prison certificate along with a copy of this Order. 9 IT IS SO ORDERED. 10 || Dated: January 21, 2022 (2 opto Cs A ) 11 Hon. Gonzalo P. Curiel 12 United States District Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28