1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 MAURICE W. HOOKER, Case No.: 3:23-cv-1229-CAB-MMP

12 Petitioner, ORDER GRANTING APPLICATION 13 v. TO PROCEED IN FORMA PAUPERIS AND DISMISSING CASE 14 CALIFORNIA MEN’S COLONY, J. WITHOUT PREJUDICE GASTELO, Warden, 15 Respondents. 16 17 18 On June 29, 2023, Petitioner, a state prisoner proceeding pro se, filed a Petition for 19 Writ of Habeas Corpus pursuant to

. ECF No. 1. On July 5, 2023, the 20 Court dismissed the case because Petitioner had failed to satisfy the filing fee requirement. 21 ECF No. 3; see also Rule 3(a), 28 U.S.C. foll. § 2254. The Court notified Petitioner that in 22 order to have his case reopened, he must either pay the $5.00 filing fee or provide adequate 23 proof of his inability to pay, no later than September 4, 2023. ECF No. 3. On July 24, 2023, 24 Petitioner filed a Motion to Proceed In Forma Pauperis (“IFP”). ECF No. 5. 25 REQUEST TO PROCEED IFP 26 According to his prison trust account statement, Petitioner has no funds on account 27 at the California correctional institution in which he is presently confined. ECF No. 5 at 5, 1 application to proceed in forma pauperis and allows Petitioner to prosecute the above- 2 referenced action without being required to prepay fees or costs and without being required 3 to post security. The Clerk of the Court shall file the Petition for Writ of Habeas Corpus 4 without prepayment of the filing fee. 5 FAILURE TO STATE A COGNIZABLE CLAIM ON FEDERAL HABEAS 6 The Petition must be dismissed because it appears a petition for writ of habeas corpus 7 pursuant to

is not the proper vehicle for the claim Petitioner presents. To 8 raise a cognizable claim on federal habeas, a petitioner must be challenging constitutional 9 validity or duration of his or her confinement. See

(a); Preiser v. 10 Rodriguez,

(1973); Heck v. Humphrey,

, 480–85 (1994). 11 Here, Petitioner’s claims appear to challenge only the conditions under which he is 12 confined. Specifically, Petitioner raises for claims: (1) a correctional officer “destroyed” 13 much of his property, (2) he has been retaliated against for complaining about prison 14 conditions, (3) money was stolen from his trust account statement, and (4) his sentence 15 should be shortened because of “human rights violations” taking place in the prison. ECF 16 No. 1 at 6–9. 17 In no way does he claim his state court conviction violates the Constitution or laws 18 or treaties of the United States. Therefore, it is plain from that Petitioner is not presently 19 entitled to federal habeas relief because he has not alleged that the state court violated his 20 federal rights. See Rule 4, 28 U.S.C. foll. § 2254 (stating a habeas petition must be 21 summarily dismissed “[i]f it plainly appears from the face of the petition and any exhibits 22 annexed to it that the petitioner is not entitled to relief in the district court”). 23 While challenges to the fact or duration of confinement are brought by petition for a 24 writ of habeas corpus pursuant to

, challenges to conditions of 25 confinement are brought pursuant to the Civil Rights Act,

. See Preiser, 26 411 U.S. at 488–500. When a state prisoner is challenging the very fact or duration of his 27 physical imprisonment, and the relief he seeks is a determination that he is entitled to 1 a writ of habeas corpus.

. On the other hand, a § 1983 action is a proper remedy 2 for a state prisoner who is making a constitutional challenge to the conditions of his prison 3 life, but not to the fact or length of his custody. Id. at 499; McIntosh v. United States Parole 4 Comm’n,

, 811–12 (10th Cir. 1997). Because Petitioner challenges only the 5 conditions of his prison life, and not the fact or length of his custody, he has not stated a 6 cognizable habeas claim pursuant to § 2254. 7 FAILURE TO ALLEGE EXHAUSTION OF STATE JUDICIAL REMEDIES 8 Further, habeas petitioners who wish to challenge either their state court conviction 9 or the length of their confinement in state prison, must first exhaust state judicial remedies. 10

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

, 133–34 (1987). To exhaust 11 state judicial remedies, a California state prisoner must present the California Supreme 12 Court with a fair opportunity to rule on the merits of every issue raised in his or her federal 13 habeas petition.

(b), (c); Granberry, 481 U.S. at 133–34. Moreover, to 14 properly exhaust state court remedies a petitioner must allege, in state court, how one or 15 more of his or her federal rights have been violated. The Supreme Court in Duncan v. 16 Henry,

(1995) reasoned: “If state courts are to be given the opportunity to 17 correct alleged violations of prisoners’ federal rights, they must surely be alerted to the fact 18 that the prisoners are asserting claims under the United States Constitution.”

at 365–66 19 (emphasis added). For example, “[i]f a habeas petitioner wishes to claim that an evidentiary 20 ruling at a state court trial denied him [or her] the due process of law guaranteed by the 21 Fourteenth Amendment, he [or she] must say so, not only in federal court, but in state 22 court.”

(emphasis added). 23 Nowhere in his Petition does Petitioner allege he raised his claims in the California 24 Supreme Court. In fact, he specifically indicates he did not seek such review. ECF No. 1 25 at 6–9. Petitioner has raised his claims in the California Supreme Court he must so specify. 26 “The burden of proving that a claim has been exhausted lies with the petitioner.” Matthews 27 v. Evatt,

(4th Cir. 1997); see Breard v. Pruett,

, 619 (4th

(10th Cir. 1994); Rust v. Zent,

(6th Cir. 1994). Rule 4 of the Rules Governing Section 2254 Cases provides for summary dismissal of a habeas petition “[i]f it plainly appears from the face of the petition and any exhibits annexed to it that the petitioner is not entitled to relief in the district court...” Rule 4, 28 U.S.C. foll. § 2254. Here, it appears plain from the Petition that Petitioner is not presently entitled to federal habeas relief because he has not alleged exhaustion of state court remedies.! CONCLUSION For the reasons discussed above, the Court GRANTS Petitioner’s motion to proceed IFP and DISMISSES the Petition without prejudice. IT IS SO ORDERED. Dated: July 27, 2023 € Hon. Cathy Ann Bencivengo United States District Judge

Further, the Court cautions Petitioner that under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) 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: (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 Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action; (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 retroactively applicable to cases on collateral review; or (D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.

(d)(1)(A)HD) (West 2006).