1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 MICHAEL DEWAYNE ALLEN, Case No.: 20cv1642-GPC (MDD)

12 Petitioner, ORDER DENYING IN FORMA 13 v. PAUPERIS APPLICATION AND DISMISSING CASE WITHOUT 14 M. POLLARD, Warden, et al., PREJUDICE 15 Respondents. 16 17 Petitioner, a state prisoner confined at the R.J. Donovan Correctional Facility in San 18 Diego, California, serving a 12-year sentence imposed in the Los Angeles County Superior 19 Court in 2019, is proceeding pro se with a Petition for a Writ of Habeas Corpus pursuant 20 to

, seeking immediate release from custody due to dangers to his health 21 arising from the Covid-19 pandemic. (ECF No. 1.) He has also filed an application to 22 proceed in forma pauperis. (ECF No. 2.) 23 REQUEST TO PROCEED IN FORMA PAUPERIS 24 The request to proceed in forma pauperis is inadequately supported because 25 Petitioner has not provided the Court with sufficient information to determine his financial 26 status. A request to proceed in forma pauperis made by a state prisoner must include a 27 certificate from the warden or other appropriate officer showing the amount of money or 28 securities Petitioner has on account in the institution. Rule 3(a)(2), 28 U.S.C. foll. § 2254; 1 Local Rule 3.2. Petitioner has failed to provide the Court with the required Prison 2 Certificate. Accordingly, the Court DENIES the request to proceed in forma pauperis. 3 FAILURE TO STATE A COGNIZABLE HABEAS CLAIM 4 Title

(a), sets forth the following scope of review for 5 federal habeas corpus claims: 6 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 7 in custody pursuant to the judgment of a State court only on the ground that 8 he is in custody in violation of the Constitution or laws or treaties of the United States. 9

10

(a). 11 Thus, to present a cognizable federal habeas corpus claim under § 2254, a state 12 prisoner must allege both that he is in custody pursuant to a “judgment of a State court,” 13 and that he is in custody in “violation of the Constitution or laws or treaties of the United 14 States.” See id. Petitioner has not identified any federal ground for relief in the Petition, 15 and has not alleged that his continued incarceration violates the Constitution or laws or 16 treaties of the United States. 17 To the extent Petitioner is complaining that the conditions of his confinement, 18 including the manner in which he is receiving treatment for or protection from Covid-19, 19 violate his federal constitutional rights, the proper form of action is a civil rights complaint 20 pursuant to

. See Crawford v. Bell,

(9th Cir. 1979) 21 (holding that the proper remedy for claims challenging conditions of confinement is a civil 22 rights action pursuant to

). Although the Court has discretion under 23 limited circumstances to construe a claim presented in a habeas petition as a § 1983 claim, 24 see Nettles v. Grounds,

(9th Cir. 2016) (en banc), the Court declines 25 to do so as it might expose Petitioner to the full filing fee for a

action. 26 FAILURE TO ALLEGE EXHAUSTION OF STATE COURT REMEDIES 27 Finally, even if the federal Petition could liberally be construed as presenting a 28 federal habeas claim, Petitioner indicates he has not presented his claims to the California 1 Supreme Court. (ECF No. 1 at 6-9.) Habeas petitioners who wish to challenge either their 2 state court conviction or the length of their confinement in state prison must first exhaust 3 state judicial remedies.

(b), (c); Granberry v. Greer,

, 133- 4 34 (1987). To exhaust state judicial remedies, a California state prisoner must present the 5 California Supreme Court with a fair opportunity to rule on the merits of every issue raised 6 in his or her federal habeas petition.

(b), (c); Granberry,

- 7 34. Moreover, to properly exhaust state court remedies a petitioner must allege, in state 8 court, how one or more of his or her federal rights have been violated. The Supreme Court 9 in Duncan v. Henry,

(1995) reasoned: “If state courts are to be given the 10 opportunity to correct alleged violations of prisoners’ federal rights, they must surely be 11 alerted to the fact that the prisoners are asserting claims under the United States 12 Constitution.”

(emphasis added). The burden of proving a claim has been 13 exhausted lies with Petitioner. Cartwright v. Cupp,

(9th Cir. 1981). 14 Petitioner states that he has not presented his claims to the California Supreme Court 15 because: “We were not faced with a global pandemic.” (ECF No. 1 at 5.) A federal habeas 16 petitioner is not required to satisfy the exhaustion requirement where “there is an absence 17 of State corrective process,” or “circumstances exist that render [that state corrective 18 process] ineffective to protect the rights of the applicant.”

(b)(1)(B)(i)- 19 (ii). Petitioner has made no such showing, and federal courts nationwide have rejected a 20 bare futility excuse by federal habeas petitioners seeking release from state custody due to 21 the Covid-19 pandemic. See e.g. Griffin v. Cook,

, at *5 (D. Conn. May 22 26, 2020) (collecting cases). 23 CONCLUSION AND ORDER 24 Petitioner’s Motion to Proceed In Forma Paupers is DENIED. The Petition is 25 DISMISSED without prejudice for failure to satisfy the filing fee requirement, failure to 26 state a cognizable federal habeas claim and failure to allege exhaustion of state court 27 remedies. If Petitioner wishes to proceed with this action he must, on or before 28 September 28, 2020, either pay the $5.00 filing fee or submit an application to proceed in 1 ||forma pauperis which contains the proper prison certificate and file a First Amended 2 || Petition which cures the defects of pleading identified in this Order. If Petitioner has not 3 || filed an amended petition alleging exhaustion of state court remedies on or before that date, 4 he still wishes to proceed with his claim in a habeas petition in this Court, he will be 5 ||required to start over by filing a new action. The Clerk of Court will send Petitioner a 6 blank Southern District of California in forma pauperis application which contains the 7 || proper prison certificate and a blank Southern District of California amended 28 U.S.C. 8 || § 2254 petition form along with a copy of this Order. ? IT IS SO ORDERED. Casto CL 10 Dated: September 2, 2020 Hon. Gonzalo P. Curiel 11 United States District Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28