DeRoche v. Ryan et al

Filing 6

ORDER granting 3 Petitioner's Motion for Leave to Proceed in forma pauperis. Petitioner's Petition for Writ of Habeas Corpus 1 and this case are dismissed without prejudice. The Clerk of Court must enter judgment accordingly and close this case. The Court declines to issue a certificate of appealability. Signed by Judge David G Campbell on 12/6/11.(TLJ)

Download PDF
1 2 RP WO 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Joshua DeRoche, Petitioner, 10 11 vs. 12 Charles L. Ryan, et al., 13 Respondents. 14 ) ) ) ) ) ) ) ) ) ) ) ) No. CV 11-2180-PHX-DGC (JFM) ORDER 15 16 Petitioner Joshua DeRoche, who is confined in the Arizona State Prison Complex- 17 Eyman, has filed a pro se Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 18 (Doc. 1), an Application to Proceed In Forma Pauperis (Doc. 3), and an “Inmate Bank 19 Account” statement (Doc. 4). The Court will dismiss the Petition and this case without 20 prejudice. 21 I. Application to Proceed In Forma Pauperis 22 Petitioner’s Application to Proceed In Forma Pauperis and “Inmate Bank Account” 23 statement indicate that his inmate trust account balance is less than $25.00. Accordingly, the 24 Application to Proceed In Forma Pauperis will be granted. See LRCiv 3.5(b). 25 II. 26 27 28 Petition Named as Respondent in the Petition is Charles L. Ryan. The Attorney General of the State of Arizona is named in the Petition as an Additional Respondent. In his Petition, Petitioner challenges his custody on his judgment of conviction on 1 June 8, 2007, for Kidnapping, entered in the Maricopa County Superior Court in matter 2 CR2004-010688-001 DT. Petitioner alleges he was sentenced to a 9.25-year term of 3 imprisonment from June 8, 2007, with 1,263 days of presentence incarceration credit. 4 5 Petitioner presents three grounds in the Petition in support of his request for habeas relief: 6 (1) “The Institutional Classification Committee repeatedly delays hearing review dates, in violation of the Due Process Clause[,] 14th Amendment[,] U.S. Constitution”; 7 8 (2) “The Institutional Classification Committee does not allow restoration of forfeited release credits to maximum custody inmates, in violation of the Equal Protection Clause, 14th Amendment, U.S. Constitution”; and 9 10 (3) “The Institutional Classification Committee does not allow restoration of forfeited release credits to inmates without access to ETV (Eyman Television), in violation of the Equal Protection Clause, 14th Amendment, U.S. Constitution.” 11 12 13 Petitioner seeks the “[w]hole or partial restoration, at the Court’s discretion, of 14 approximately one hundred and ten (110) forfeited release credits” and alleges that his 15 available administrative remedies within the prison have been exhausted. However, 16 Petitioner also alleges that he has not presented the issues in any of his grounds to either the 17 Arizona Court of Appeals or the Arizona Supreme Court. 18 III. Failure to Exhaust Available State-Court Remedies 19 Before the court may grant habeas relief to a state prisoner, the prisoner must exhaust 20 remedies available in the state courts. 28 U.S.C. § 2254(b)(1); O’Sullivan v. Boerckel, 526 21 U.S. 838, 842 (1999). “In other words, the state prisoner must give the state courts an 22 opportunity to act on his claims before he presents those claims to a federal court in a habeas 23 petition.” O’Sullivan, 526 U.S. at 842. The failure to exhaust subjects the Petition to 24 dismissal. See Gutierrez v. Griggs, 695 F.2d 1195, 1197 (9th Cir. 1983). 25 Before Petitioner may seek habeas corpus relief in this Court he must first present his 26 claims to the state courts and exhaust his state court remedies. The fact that release credits 27 28 -2- 1 are involved does not shield him from the exhaustion requirement.1 Petitioner states that he 2 has not presented his grounds for relief to the Arizona Court of Appeals or the Arizona 3 Supreme Court. Thus, this habeas action is premature. The Court will dismiss the Petition 4 and this case without prejudice. 5 IT IS ORDERED: 6 (1) Petitioner’s Application to Proceed In Forma Pauperis (Doc. 3) is granted. 7 (2) Petitioner’s Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 8 (Doc. 1) and this case are dismissed without prejudice. 9 (3) The Clerk of Court must enter judgment accordingly and close this case. 10 (4) Pursuant to Rule 11(a) of the Rules Governing Section 2254 Cases, in the event 11 Petitioner files an appeal, the Court declines to issue a certificate of appealability because 12 reasonable jurists would not find the Court’s procedural ruling debatable. See Slack v. 13 McDaniel, 529 U.S. 473, 484 (2000). DATED this 6th day of December, 2011. 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 A state-court petition for special action may be appropriate when the sentence has not expired. See Crumrine v. Stewart, 24 P.3d 1281 (Ariz. App. 2001) (noting that trial court had construed a state-court petition for habeas corpus regarding the application of earned release credits as a petition for special action and stating that, in order to obtain special action relief, the petitioner was required to show that the Director of the Arizona Department of Corrections “failed to exercise his discretion, failed to perform a duty as to which he had no discretion, or abused his discretion”). A state-court petition for post-conviction relief can be used if “[t]he person is being held in custody after the sentence imposed has expired.” Ariz. R. Crim. P. 32.1(d). -3-

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.


Why Is My Information Online?