Hilton Mincy v. State of California et al

Filing 4

MINUTE (IN CHAMBERS) ORDER TO SHOW CAUSE by Magistrate Judge Steve Kim. Petitioner is ORDERED TO SHOW CAUSE on or before March 20, 2021 why the Court should not summarily dismiss his habeas petition. (see document for further details) (hr)

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

2:21-cv-1032-AB (SK)

Title

Hilton Mincy v. State of California et. al.

Present: The Honorable

Date

February 18, 2021

Steve Kim, U.S. Magistrate Judge

Erica Valencia

n/a

Deputy Clerk

Court Smart / Recorder

Attorneys Present for Petitioner:

Attorneys Present for Respondent:

None present

None present

Proceedings:

(IN CHAMBERS) ORDER TO SHOW CAUSE

In 2018, Petitioner was convicted and sentenced in California state court for felony
possession of drugs. That California conviction evidently led to a violation of Petitioner’s
parole from an earlier unrelated conviction that he sustained in Pennsylvania. And because of
that parole revocation, Petitioner received a custodial term of imprisonment that he is
currently serving at the State Correctional Institution in Huntington, Pennsylvania. Petitioner
now seeks to overturn his 2018 California conviction through a habeas petition filed here in
February 2021. (ECF 1). The petition appears deficient on its face, however, for three reasons.
First, public records suggest that Petitioner has completed his sentence from his 2018
California conviction. See Trigueros v. Adams, 658 F.3d 983, 987 (9th Cir. 2011) (federal
courts may take judicial notice of public state court records). If that is correct, Petitioner is not
in custody for the California conviction he is challenging in his petition. To invoke this Court’s
habeas jurisdiction, Petitioner must “be ‘in custody’ under the conviction or sentence under
attack at the time his petition is filed.” Maleng v. Cook, 490 U.S. 488, 490-91 (1989).
Otherwise, this court has no jurisdiction to review Petitioner’s habeas claims attacking his
2018 California conviction. See Id. at 492. It makes no difference—for jurisdictional
purposes—that the California conviction may have been the basis to revoke his Pennsylvania
parole. The custodial term Petitioner is now serving as a result of his parole revocation is
legally part of his sentence from the Pennsylvania conviction (which is unchallenged), not part
of any completed sentence from the California conviction (which is what Petitioner wants to
challenge). See Zichko v. Idaho, 247 F.3d 1015, 1019 (9th Cir. 2001).
Second, the court lacks personal jurisdiction over the respondents that Petitioner has
named. See 28 U.S.C. § 2242; Johnson v. Reilly, 349 F.3d 1149, 1153 (9th Cir. 2003). The
correct respondent is “the person who has custody over [the petitioner]” and “the ability to
produce [his] body before the habeas court.” Rumsfeld v. Padilla, 542 U.S. 426, 434-35
CV-90 (10/08)

CIVIL MINUTES - GENERAL

Page 1 of 2

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

2:21-cv-1032-AB (SK)

Date

Title

February 18, 2021

Hilton Mincy v. State of California et. al.

(2004). Generally, this means the warden of the facility where the prisoner is held. See Id. at
438. Because none of the named respondents here—the State of California, the County of Los
Angeles, the California Attorney General, or the Los Angeles District Attorney—has custody of
Petitioner while he is in a Pennsylvania prison, the court cannot proceed with the petition as
alleged.
Third, Petitioner states that his petition contains both exhausted and unexhausted
claims. (ECF 1 at 4, 6, 18). If that is correct, his petition is a “mixed petition” that the court
cannot review so long as any unexhausted claims remain in the petition. See Rose v. Lundy,
455 U.S. 509, 510 (1982). That said, not even the claims Petitioner alleges he has exhausted
appear to have been exhausted. (ECF 1 at 3-5). A claim is not exhausted until it has been
raised in a complete round of direct appeals or state habeas proceedings up to the highest state
court. See 28 U.S.C. § 2254(b)(1)(A); Baldwin v. Reese, 541 U.S. 27, 29 (2004). Yet the
public records show no evidence that Petitioner has raised any of his claims—including ones he
alleges are exhausted—in a petition to the California Supreme Court. If, on the other hand, he
did petition the California Supreme Court but did so too late, Petitioner’s claims in any such
untimely state petition would be procedurally defaulted and thus unreviewable in federal court.
See Coleman v. Thompson, 501 U.S. 722, 750 (1991) (procedural default in state court
forecloses federal habeas review absent showing of cause and prejudice).
For all these reasons, Petitioner is ORDERED TO SHOW CAUSE on or before
March 20, 2021 why the Court should not summarily dismiss his habeas petition on the
grounds above. Petitioner’s response must show, first and most importantly, that he is in
custody for the California conviction he seeks to challenge. If he is, Petitioner must then also
show that all his habeas claims he wants to pursue in federal court have been exhausted in the
California Supreme Court and are not procedurally defaulted. For any procedurally defaulted
claims Petitioner wants to pursue, he must demonstrate cause and prejudice. And if he can
carry all these burdens, Petitioner must still amend his petition to name the correct respondent
(and to delete any unexhausted claims that might otherwise make his petition mixed). This
order thus grants Petitioner leave to file an amended petition if—and only if—he can make all
the required showings and correct all the current petition’s pleading defects. Alternatively, if
Petitioner cannot make these showings or cure these defects (or no longer wishes to pursue this
action for any reason), he may voluntarily dismiss the action using the attached form CV-09.
Failure to file a timely and satisfactory response to this order, including an
amended petition if appropriate, may lead to involuntary dismissal of this action
for failure to prosecute. See Fed. R. Civ. P. 41(b); L.R. 41-1.
CV-90 (10/08)

CIVIL MINUTES - GENERAL

Page 2 of 2

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CASE NUMBER

Plaintiff(s),

v.

Defendant(s).

NOTICE OF DISMISSAL PURSUANT
TO FEDERAL RULES OF CIVIL
PROCEDURE 41(a) or (c)

PLEASE TAKE NOTICE: (Check one)
G This action is dismissed by the Plaintiff(s) in its entirety.
G The Counterclaim brought by Claimant(s)
dismissed by Claimant(s) in its entirety.

is

G The Cross-Claim brought by Claimants(s)
dismissed by the Claimant(s) in its entirety.

is

G The Third-party Claim brought by Claimant(s)
dismissed by the Claimant(s) in its entirety.

is

G ONLY Defendant(s)
is/are dismissed from (check one) G Complaint, G Counterclaim, G Cross-claim, G Third-Party Claim
brought by

.

The dismissal is made pursuant to F.R.Civ.P. 41(a) or (c).

Date

Signature of Attorney/Party

NOTE: F.R.Civ.P. 41(a): This notice may be filed at any time before service by the adverse party of an answer or of a motion for
summary judgment, whichever first occurs.
F.R.Civ.P. 41(c): Counterclaims, cross-claims & third-party claims may be dismissed before service of a responsive
pleading or prior to the beginning of trial.

CV-09 (03/10)

NOTICE OF DISMISSAL PURSUANT TO FEDERAL RULES OF CIVIL PROCEDURE 41(a) or (c)