Johnson v. Ryan et al

Filing 6

ORDER: Petitioners Application to Proceed In Forma Pauperis 5 is granted. The Petition 1 and this action are dismissed without prejudice for failure to exhaust state court remedies. The Clerk of Court must close this case and enter judgment. The Court declines to issue a certificate of appealability. Signed by Judge G Murray Snow on 11/8/2013. (ALS)

1

WO

MD

2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8
9

Billy Ray Johnson,

10

No. CV 13-1434-PHX-GMS (JFM)
Petitioner,

11

vs.

12

Charles L. Ryan, et al.,

ORDER

13

Respondents.

14
15

On July 16, 2013, Petitioner Billy Ray Johnson, who is confined in the Arizona

16

State Prison Complex-Florence in Florence, Arizona, filed a pro se Petition for Writ of

17

Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 1). In an Order dated September 3,

18

2013, the Court ordered Plaintiff to either pay the $5.00 filing fee or file a complete

19

Application to Proceed In Forma Pauperis. On September 20, 2013, Plaintiff filed an

20

Application to Proceed (Doc. 5). The Court will dismiss the Petition and this action.

21

I.

Application to Proceed In Forma Pauperis

22

Petitioner’s Application to Proceed In Forma Pauperis indicates that his inmate

23

trust account balance is less than $25.00. Accordingly, the Application to Proceed In

24

Forma Pauperis will be granted. See LRCiv 3.5(b).

25

II.

Petition

26
27

disciplinary violation. Petitioner names Charles Ryan as Respondent and the Arizona

28

JDDL

Petitioner challenges his loss of 60 days of early release credits (“ERC”) for a

Attorney General as an Additional Respondent.

1

Petitioner raises one ground for relief. Petitioner states that on June 18, 2013, he

2

was found guilty in a disciplinary hearing for possession of contraband and lost 60 days’

3

ERC. Petitioner alleges that the sanction was in violation of the Ex Post Facto Clause of

4

the United States Constitution and cites to Lynce v. Mathis, 519 U.S. 433 (1997).

5

Petitioner seeks to be released from prison. Petitioner affirmatively alleges that he has

6

not presented this claim to the Arizona Court of Appeals or the Arizona Supreme Court.

7

III.

Failure to Exhaust State Remedies

8

To challenge disciplinary proceedings, a prisoner may seek federal habeas relief

9

pursuant to 28 U.S.C. § 2254, which is the “exclusive vehicle” for a state prisoner to seek

10

relief from an administrative decision in federal court. See White v. Lambert, 370 F.3d

11

1002, 1009-10 (9th Cir. 2004). Before a federal court may grant habeas relief, however,

12

a prisoner must first have exhausted remedies available in the state courts. See 28 U.S.C.

13

§ 2254(b)(1); O’Sullivan v. Boerckel, 526 U.S. 838, 842 (1999). The federal court will

14

not entertain a petition for writ of habeas corpus unless each and every issue has been

15

exhausted. Rose v. Lundy, 455 U.S. 509, 521-22 (1982); Olvera v. Guirbino, 371 F.3d

16

569, 572 (9th Cir. 2004) (district court may not consider a claim until petitioner has

17

properly exhausted all available remedies). When seeking habeas relief, the burden is on

18

the habeas petitioner to show that he has properly exhausted each claim. Cartwright v.

19

Cupp, 650 F.2d 1103, 1104 (9th Cir. 1981) (per curiam).

20
21

on his claims. Castillo v. McFadden, 370 F.3d 882 (9th Cir. 2004). He must describe

22

both the operative facts and the federal legal theory so that the state courts have a “fair

23

opportunity” to apply controlling legal principles to the facts bearing upon his

24

constitutional claim.” Kelly v. Small, 315 F.3d 1063, 1066 (9th Cir. 2003). A prisoner

25

seeking to exhaust claims in state court before filing a federal habeas action should

26

diligently pursue his available state remedies to avoid application of the one-year

27

limitation period. See Shelby v. Bartlett, 391 F.3d 1061, 1066 (9th Cir. 2004) (applying

28

JDDL

To exhaust claims, a prisoner must give the state courts a “fair opportunity” to act

§ 2244(d) to a habeas petition challenging a disciplinary order).

-2-

1

Petitioner affirmatively alleges that he has not exhausted state court remedies. To

2

the extent that Petitioner may be challenging disciplinary proceedings that resulted in a

3

loss of ERC, Arizona’s Administrative Review Act does not specifically authorize state

4

judicial review of prison disciplinary proceedings, but an inmate may seek such review

5

by bringing a special action in superior court. Rose v. Arizona Dep’t of Corr., 804 P.2d

6

845, 847-50 (Ariz. Ct. App. 1991). If unsuccessful, the inmate must then appeal the

7

superior court’s ruling to the Arizona Court of Appeals to exhaust his claims before

8

seeking federal habeas relief. See Swoopes v. Sublett, 196 F.3d 1008, 1010 (9th Cir.

9

1999).

10
11

Because Petitioner has not exhausted his state court remedies, the Court will
dismiss the Petition and this action.

12

IT IS ORDERED:

13

(1)

Petitioners Application to Proceed In Forma Pauperis (Doc. 5) is granted.

14

(2)

The Petition (Doc. 1) and this action are dismissed without prejudice for

15

failure to exhaust state court remedies.

16

(3)

The Clerk of Court must close this case and enter judgment.

17

(4)

Pursuant to Rule 11(a) of the Rules Governing Section 2254 Cases, in the

18

event Petitioner files an appeal, the Court declines to issue a certificate of appealability

19

because reasonable jurists would not find the Court’s procedural ruling debatable. See

20

Slack v. McDaniel, 529 U.S. 473, 484 (2000).

21

Dated this 8th day of November, 2013.

22
23
24
25
26
27
28

JDDL

-3-