1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 WESTERN DIVISION 11 GEORGE HERNANDEZ, ) Case No. 2:20-cv-09452-MCS-JDE ) 12 Petitioner, ) ) ORDER TO SHOW CAUSE WHY THE ) 13 v. ) PETITION SHOULD NOT BE ) DISMISSED 14 WARDEN, CORCORAN ) STATE PRISON, ) 15 ) Respondent. ) 16 17 I. 18 INTRODUCTION 19 On October 13, 2020, Petitioner George Hernandez (“Petitioner”) filed a 20 “Petition for Writ of Habeas Corpus

,” raising six grounds for 21 relief. See Dkt. 1 (“Petition” or “Pet.”). The Court has reviewed the Petition 22 consistent with its authority under Rule 4 of the Rules Governing Section 2254 23 Cases in the United States District Courts (“Habeas Rules”) and finds that the 24 Petition suffers from at least four defects. The Court therefore orders Petitioner 25 to show cause why this action should not be dismissed. 26 II. 27 PETITIONER’S CLAIMS 28 1. Trial counsel rendered ineffective assistance by failing to call 1 expert witnesses to support Petitioner’s justifiable murder defense. 2 2. Trial counsel rendered ineffective assistance by failing to provide 3 Petitioner’s client file upon request. 4 3. Prison officers abused their discretion in obstructing Petitioner’s 5 right to possess legal materials essential to claims being litigated. 6 4. Appellate counsel rendered ineffective assistance by failing to raise 7 an insufficiency of the evidence claim on appeal. 8 5. The evidence was insufficient to support Petitioner’s conviction for 9 second degree murder. 10 6. “The cumulative effect of the errors mentioned deprived Petitioner 11 of a fair and impartial trial as envisioned by the federal constitution.” 12 Pet. at 2. 13 III. 14 DISCUSSION 15 Under Rule 4 of the Habeas Rules, the Court must review the Petition 16 and, if it plainly appears from the Petition and any attached exhibits that the 17 Petitioner is not entitled to relief, the Court must dismiss the Petition. Here, 18 the Petition appears subject to dismissal for four reasons: (1) Petitioner has not 19 submitted his Petition on the form habeas petition approved by the Central 20 District of California; (2) Petitioner does not name the proper respondent; (3) 21 Petitioner failed to pay the filing fee; and (4) at least two of Petitioner’s claims 22 are not cognizable on federal habeas review. 23 A. Failure to Use the Court-Approved Form 24 First, the Petition has not been submitted on the form approved by the 25 Central District of California. Rule 2(d) of the Habeas Rules authorizes district 26 courts to require that habeas petitions be filed in a form prescribed by the Local 27 Rules. This Court has such a Local Rule. See Central District Local Civil Rule 28 83-16.1 (“A petition for writ of habeas corpus . . . shall be submitted on the 1 forms approved and supplied by the Court.”). The Petition is subject to 2 dismissal for failure to properly use a Court-approved form. 3 B. Failure to Name the Proper Respondent 4 Second, the Petition fails to name an appropriate respondent. Typically, 5 the proper respondent for a habeas petition is the warden of the facility in 6 which the petitioner is incarcerated. See Stanley v. Cal. Sup. Ct.,

, 7 360 (9th Cir. 1994) (as amended); see also Rule 2(a), Habeas Rules. The Ninth 8 Circuit has held the failure to name the correct respondent destroys personal 9 jurisdiction. See Ortiz-Sandoval v. Gomez,

(9th Cir. 1996) 10 (as amended); Stanley,

. Here, Petitioner names “WARDEN, 11 CORCORAN STATE PRISON” as the respondent, but fails to identify a 12 specific individual. 13 C. Failure to Pay Filing Fee 14 Third, Petitioner did not pay the $5 filing fee for a federal habeas petition 15 and did not file an application to proceed without prepayment of the filing fee 16 (“IFP Application”) as required by

. The Clerk is directed to 17 send Petitioner a form IFP Application by a person in custody, which 18 Petitioner is required to prepare in full, and obtain any necessary information 19 and certification from staff at the facility where he is incarcerated if he wishes 20 to proceed without prepayment of the filing fee. 21 D. Petitioner Asserts Non-Cognizable Claims 22 Fourth, Grounds Two and Three appear subject to dismissal as non- 23 cognizable. In Ground Two, Petitioner alleges that trial counsel rendered 24 ineffective assistance by failing to provide his client file upon request for 25 purposes of supporting his ineffective assistance of counsel claim in Ground 26 One.1 In support, Petitioner cites various California cases, arguing that 27

28 1 Although Petitioner contends that trial counsel failed to provide his client file, a 1 “[p]rocedural law in the State of California mandates counsel appointed 2 and/or retained by the client to relinquish to the client the client file 3 maintained by said appointed and/or retained counsel when the client makes a 4 written request to obtain said file.” Pet. at 2, 13. 5 “In conducting habeas review, a federal court is limited to deciding 6 whether a conviction violated the Constitution, laws, or treaties of the United 7 States.” Estelle v. McGuire,

(1991); Smith v. Phillips,

209, 221 (1982) (“A federally issued writ of habeas corpus, of course, reaches 9 only convictions obtained in violation of some provision of the United States 10 Constitution.”). Federal habeas relief is not available for errors of state law. 11 See

(a); McGuire,

. As such, Petitioner’s 12 claim alleging his trial counsel failed to provide his client file based on state 13 law does not present a federal question and as such, this claim is not 14 cognizable on federal habeas review. Although Petitioner attempts to 15 characterize his claim as a violation of Strickland v. Washington,

(1984), Petitioner cannot “transform a state law issue into a federal one” 17 simply by labeling it unconstitutional. See Langford v. Day,

, 18 1389 (9th Cir. 1997) (as modified) (“[A petitioner] may not . . . transform a 19 state-law issue into a federal one merely by asserting a violation of due 20 process.”); see also Wells v. Williams,

, at *3-4 (D. Nev. 21 Aug. 21, 2020) (claim that trial/appellate counsel was ineffective because he 22 refused to send legal file after his appeal concluded failed to state an actionable 23 habeas claim on its face); Gonzalez v. Harrington,

, at *30 24 letter attached to the Petition appears to indicate that counsel provided Petitioner at 25 least some of these documents. See Pet. at 40 (CM/ECF pagination) (4/4/18 letter 26 from deputy public defender Melissa Mammenga responding to Petitioner’s letter requesting clarification regarding, among other things, why certain information was 27 redacted, and advising Petitioner that she would “review the file again to ensure that 28 all pages that are allowed have been sent to” Petitioner). 1 (C.D. Cal. June 6, 2011) (“the United States Supreme Court has never held 2 that a defense counsel’s failure to turn over his case file immediately after being 3 relieved is, in itself, a violation of federal law” and finding claim that counsel’s 4 failure to turn over his files interfered with ability to mount a collateral 5 challenge to sentence and conviction could not form the basis of an ineffective 6 assistance of counsel claim (citing Moormann v. Schriro,

, 1058 7 (9th Cir. 2005)), report and recommendation accepted by

8 (C.D. Cal. Feb. 27, 2012); Dailey v. Hubbard,

, at *10 (C.D. 9 Cal. Jan. 25, 2010) (finding claim that trial counsel was ineffective for failing to 10 provide petitioner with his legal file in order for petitioner to prepare a state 11 habeas petition could not form the basis of an ineffective assistance of counsel 12 claim because petitioner had no constitutional right to counsel beyond his first 13 direct appeal), report and recommendation adopted by

14 (C.D. Cal. Apr. 27, 2010); cf.

(i) (“The ineffectiveness or 15 incompetence of counsel during Federal or State collateral post-conviction 16 proceedings shall not be a ground for relief in a proceeding arising under 17 section 2254.”). While this claim may provide an explanation as to why 18 Petitioner did not provide any evidence from his trial counsel’s file 19 substantiating his contention that counsel failed to interview witnesses in 20 support of Ground One, Petitioner does not separately challenge any act or 21 omission that took place at trial or on appeal in this ground for relief. Instead, 22 it appears Petitioner is challenging counsel’s failure to turn over his case file for 23 purposes of pursuing collateral post-conviction review. See, e.g., Pet. at 37 24 (6/20/19 letter from Petitioner to counsel explaining that he is working on a 25 petition relating to his conviction and has a right to seek post-conviction relief). 26 Consequently, Petitioner cannot show a reasonable probability that, but for 27 counsel’s failure to turn over his file, the results of his trial or appeal would 28 have been different. See Strickland,

; see also Smith v. Robbins, 1

(2000); Dailey,

, at *10; Blazer v. 2 Scribner,

, at *19 (C.D. Cal. June 17, 2009) (finding that 3 petitioner failed to make the requisite showing of prejudice because the claim 4 that counsel failed to comply with petitioner’s post-trial request for his client 5 file “took place well after the completion of his trial and consequently, 6 petitioner cannot show a reasonable probability that, but for counsel’s failure 7 to turn over the files, the results of the trial would have been different”). As 8 such, it appears Ground Two is not cognizable and/or plainly meritless. 9 As to Ground Three, it appears this claim must be pursued, if at all, in a 10 civil rights action under

. In Ground Three, Petitioner alleges 11 that “[p]rison officials abused their discretion in obstructing Petitioner’s right 12 to possess legal materials essential to the claims being litigated.” In particular, 13 Petitioner contends that prison officials denied him access to his client file, 14 thereby obstructing his right to court access. Pet. at 2, 16-19. 15 “Federal law opens two main avenues to relief on complaints related to 16 imprisonment: a petition for habeas corpus,

, and a complaint 17 under the Civil Rights Act . . .

.” Muhammad v. Close, 540

, 750 (2004) (per curiam). Challenges to the validity of any 19 confinement or to particulars affecting its duration fall within the “core” of 20 habeas corpus. Hill v. McDonough,

(2006); Nelson v. 21 Campbell,

(2004). “By contrast, constitutional claims that 22 merely challenge the conditions of prisoner’s confinement, whether the inmate 23 seeks monetary or injunctive relief, fall outside of that core and may be 24 brought pursuant to § 1983 in the first instance.” Nelson,

; see 25 also Hill,

; Nettles v. Grounds,

(9th Cir. 26 2016) (en banc) (finding “a § 1983 action is the exclusive vehicle for claims 27 brought by state prisoners that are not within the core of habeas corpus”). 28 Thus, if success on a habeas petitioner’s claim would not necessarily lead to his 1 immediate or earlier release from confinement, the claim does not fall within 2 “the core of habeas corpus” and thus, must be pursued, if at all, under 42

. Nettles,

(citing Skinner v. Switzer,

, 535 n.13 (2011)); see also Ramirez v. Galaza,

(9th Cir. 5 2003). 6 Here, it appears Ground Three does not fall within the core of habeas 7 corpus. Petitioner’s claim regarding the denial of his client file is not 8 cognizable on federal habeas review because it challenges Petitioner’s 9 conditions of confinement and does not implicate the fact or duration of his 10 confinement. As the Ninth Circuit has explained, “prisoners may not challenge 11 mere conditions of confinement in habeas corpus.” Nettles,

. 12 Regardless of the form of relief sought, success on this claim would not result 13 in an immediate or speedier release from custody. As such, it appears this 14 claim must be pursued in a civil rights action. See, e.g., Shook v. Apker,

App’x 702, 702-03 (9th Cir. 2012) (finding claims on conditions of 16 confinement were properly brought in a civil rights action despite the relief 17 sought); Johnson v. Matevousian,

, at *2 (E.D. Cal. Feb. 2, 18 2017) (claims that prison officials failed to provide legal materials and denied 19 access to the courts constituted challenges to conditions of confinement and as 20 such, a civil rights action was the proper vehicle for pursuing those challenges); 21 Wiig v. Ives,

, at *4 (E.D. Cal. Jan. 25, 2011) (claim 22 regarding denial of access to legal materials must be pursued in civil rights 23 action). Accordingly, it appears at least two of Petitioner’s claims are not 24 cognizable on federal habeas review. 25 IV. 26 ORDER 27 For the foregoing reasons, the Petition is subject to dismissal. Petitioner 28 is ORDERED TO SHOW CAUSE, in writing, by no later than thirty (30) 1 from the date of this Order, why this action should not be dismissed 2 ||under Habeas Rule 4 for the reasons stated above. 3 Alternatively, Petitioner may file an amended petition within thirty (30) 4 || days of the date of this Order to attempt to cure the above-referenced defects. 5 || The Clerk is directed to send Petitioner a blank copy of the Central District 6 || habeas petition form for this purpose. The amended petition should reflect the 7 ||same case number, be clearly labeled “First Amended Petition,” and be filled 8 ||out completely, including naming the appropriate respondent. 9 Petitioner is cautioned that a failure to respond timely in compliance 10 || with this Order may result in this action being dismissed for the foregoing 11 |/reasons, for failure to prosecute, and for failure to comply with a Court order. 12 13 || Dated: October 27, 2020 14 if de 15 wie oF 16 J D. EARLY nited States Magistrate Judge 17 18 19 20 21 22 23 24 25 26 27 28