Warshaw v. Covello

8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA CHRISTOPHER D. WARSAW, Case No.: 19cv1578 CAB (MDD) 12 Petitioner, ORDER: (1) DENYING IN FORMA v. PAUPERIS APPLICATION AS MOOT AND PATRICK COVELLO, Warden, 15 Respondent. (2) DISMISSING CASE WITHOUT PREJUDICE AND WITH LEAVE TO AMEND 18 Petitioner, a state prisoner proceeding pro se, has filed a Petition for Writ of 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 No. 2.) Petitioner then submitted the $5.00 filing fee on September 4, 2019. (ECF No. 3.) Because Petitioner has paid the filing fee, the Court DENIES Petitioner’s application 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 governing § 2254 cases, Petitioner has failed to allege that his state court conviction or sentence violates the Constitution of the United States.

1 Title 28, United States Code, § 2254(a), sets forth the following scope of review 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 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 United States.

8 28 U.S.C. § 2254(a) (emphasis added). See Hernandez v. Ylst, 930 F.2d 714, 719 (9th Cir. 1991); Mannhalt v. Reed, 847 F.2d 576, 579 (9th Cir. 1988); Kealohapauole v. Shimoda, 800 F.2d 1463, 1464-65 (9th Cir. 1986). Thus, to present a cognizable federal habeas corpus claim under § 2254, a state prisoner must allege both that he is in custody pursuant to a “judgment of a State court,” and that he is in custody in “violation of the 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 misconduct in prison and argues that prison officials failed to adhere to proper procedures during the subsequent Rule Violations Report Hearing. (See Pet. at 1-2, ECF No. 1.) He further argues that the prison Appeals Coordinator is retaliating against him and violating his First Amendment rights by failing to process his inmate grievance appeal. (Id.) In no way, however, does Petitioner claim he is “in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254 (emphasis added).1 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 conditions of confinement are brought pursuant to the Civil Rights Act, 42 U.S.C. § 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 is a determination that he is entitled to immediate release or a speedier release from that 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 1 Further, the Court notes that Petitioner cannot simply amend his Petition to state a federal habeas claim and then refile the amended petition in this case. He must exhaust state judicial remedies before bringing his claims via federal habeas. State prisoners who 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 state judicial remedies, a California state prisoner must present the California Supreme Court with a fair opportunity to rule on the merits of every issue raised in his or her 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 state court, how one or more of his or her federal rights have been violated. The Supreme Court in Duncan v. Henry, 513 U.S. 364 (1995) reasoned: “If state courts are to be given the opportunity to correct alleged violations of prisoners’ federal rights, they must surely be alerted to the fact that the prisoners are asserting claims under the United States Constitution.” Id. at 365-66 (emphasis added). For example, “[i]f a habeas petitioner wishes to claim that an evidentiary ruling at a state court trial denied him the due process of law guaranteed by the Fourteenth Amendment, he must say so, not only in federal court, but in state court.” Id. (emphasis added).

18 Additionally, the Court cautions Petitioner that under the Antiterrorism and Effective Death Penalty Act of 1996, a one-year period of limitation shall apply to a petition for a writ of habeas corpus by a person in custody pursuant to the judgment of a 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 seeking such review; (B) the date on which the impediment to filing an application created by State action in violation of the his custody. Id. at 499; McIntosh v. United States Parole Comm’n, 115 F.3d 809, 811-12 1 Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action; 3 (C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made 5 retroactively applicable to cases on collateral review; or (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.

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 filed state habeas corpus petition is pending. 28 U.S.C. § 2244(d)(2); see Nino v. Galaza, 183 F.3d 1003, 1006 (9th Cir. 1999). But see Artuz v. Bennett, 531 U.S. 4, 8 (2000) (holding that “an application is ‘properly filed’ when its delivery and acceptance [by the appropriate court officer for placement into the record] are in compliance with the applicable laws and rules governing filings.”). However, absent some other basis for 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 and DISMISSES the case without prejudice and with leave to amend. To have the case reopened, Petitioner must, no later than November 12, 2019, file a First Amended Petition that cures the pleading deficiency outlined above. For Petitioner’s convenience, / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / || the Clerk of Court shall attach to this Order a form in forma pauperis application and a || blank habeas petition form.

3 IT IS SO ORDERED.

4 ||Dated: September 6, 2019 € ZL Hon. Cathy Ann Bencivengo 6 United States District Judge