Wallace v. CA Dept. of Corrections & Rehabilitation, et al.

Filing 6

ORDER DISMISSING PETITION FOR WRIT OF HABEAS CORPUS WITH LEAVE TO AMEND; signed by Magistrate Judge Dennis L. Beck on 1/4/2012. Amended Complaint due by 2/6/2012. (Fahrney, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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NATHANIEL WALLACE,

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1:11-cv-01983-LJO-DLB (HC)

Petitioner,
ORDER DISMISSING PETITION FOR WRIT
OF HABEAS CORPUS WITH LEAVE TO
AMEND

v.

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CA. DEPARTMENT OF CORRECTIONS
AND REHABILITATION, et.al.,

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[Doc. 1]

Respondents.
/

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Petitioner is proceeding pro se with a petition for writ of habeas corpus pursuant to 28
U.S.C. § 2254.
Petitioner filed the instant petition for writ of habeas corpus on December 1, 2011.

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Petitioner contends that prison officials have refused to place his sentencing transcript in his

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central file.

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DISCUSSION
Rule 4 of the Rules Governing § 2254 Cases requires the Court to make a preliminary

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review of each petition for writ of habeas corpus. The Court must dismiss a petition "[i]f it

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plainly appears from the face of the petition . . . that the petitioner is not entitled to relief." Rule

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4 of the Rules Governing 2254 Cases; see also Hendricks v. Vasquez, 908 F.2d 490

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(9th Cir.1990).

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I.

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Improper Respondent
A petitioner seeking habeas corpus relief under 28 U.S.C. § 2254 must name the state

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officer having custody of him as the respondent to the petition. Rule 2 (a) of the Rules

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Governing § 2254 Cases; Ortiz-Sandoval v. Gomez, 81 F.3d 891, 894 (9th Cir. 1996); Stanley v.

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California Supreme Court, 21 F.3d 359, 360 (9th Cir. 1994). Normally, the person having

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custody of an incarcerated petitioner is the warden of the prison in which the petitioner is

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incarcerated because the warden has "day-to-day control over" the petitioner. Brittingham v.

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United States, 982 F.2d 378, 379 (9th Cir. 1992); see, also, Stanley v. California Supreme Court,

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21 F.3d 359, 360 (9th Cir. 1994). However, the chief officer in charge of state penal institutions

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is also appropriate. Ortiz, 81 F.3d at 894; Stanley, 21 F.3d at 360. Where a petitioner is on

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probation or parole, the proper respondent is his probation or parole officer and the official in

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charge of the parole or probation agency or state correctional agency. Id.

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In this case, Petitioner names the California Department of Corrections and the California

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Department of Corrections and Rehabilitation as Respondents. Although Petitioner is currently

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in the custody of the California Department of Corrections, it cannot be considered the person

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having day-to-day control over Petitioner.

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Petitioner’s failure to name a proper respondent requires dismissal of his habeas petition

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for lack of jurisdiction. Stanley, 21 F.3d at 360; Olson v. California Adult Auth., 423 F.2d

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1326, 1326 (9th Cir. 1970); see, also, Billiteri v. United States Bd. Of Parole, 541 F.2d 938, 948

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(2d Cir. 1976). However, in this case, the Court will give petitioner the opportunity to cure his

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defect by amending the petition to name a proper respondent. See, West v. Louisiana, 478 F.2d

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1026, 1029 (5th Cir.1973), vacated in part on other grounds, 510 F.2d 363 (5th Cir.1975) (en

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banc) (allowing petitioner to amend petition to name proper respondent); Ashley v. State of

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Washington, 394 F.2d 125 (9th Cir. 1968) (same).

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II.

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Exhaustion State Court Remedies
A petitioner who is in state custody and wishes to collaterally challenge his conviction by

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a petition for writ of habeas corpus must exhaust state judicial remedies. 28 U.S.C. §

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2254(b)(1). The exhaustion doctrine is based on comity to the state court and gives the state
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court the initial opportunity to correct the state's alleged constitutional deprivations. Coleman v.

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Thompson, 501 U.S. 722, 731, 111 S.Ct. 2546, 2554-55 (1991); Rose v. Lundy, 455 U.S. 509,

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518, 102 S.Ct. 1198, 1203 (1982); Buffalo v. Sunn, 854 F.2d 1158, 1163 (9th Cir. 1988).

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A petitioner can satisfy the exhaustion requirement by providing the highest state court

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with a full and fair opportunity to consider each claim before presenting it to the federal court.

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Picard v. Connor, 404 U.S. 270, 276, 92 S.Ct. 509, 512 (1971); Johnson v. Zenon, 88 F.3d 828,

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829 (9th Cir. 1996). A federal court will find that the highest state court was given a full and fair

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opportunity to hear a claim if the petitioner has presented the highest state court with the claim's

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factual and legal basis. Duncan v. Henry, 513 U.S. 364, 365, 115 S.Ct. 887, 888 (1995) (legal

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basis); Kenney v. Tamayo-Reyes, 504 U.S. 1, 112 S.Ct. 1715, 1719 (1992) (factual basis).

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Additionally, the petitioner must have specifically told the state court that he was raising a

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federal constitutional claim. Duncan, 513 U.S. at 365-66, 115 S.Ct. at 888; Keating v. Hood,

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133 F.3d 1240, 1241 (9th Cir.1998). For example, if a petitioner wishes to claim that the trial

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court violated his due process rights “he must say so, not only in federal court but in state court.”

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Duncan, 513 U.S. at 366, 115 S.Ct. at 888. A general appeal to a constitutional guarantee is

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insufficient to present the "substance" of such a federal claim to a state court. See Anderson v.

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Harless, 459 U.S. 4, 7, 103 S.Ct. 276 (1982) (Exhaustion requirement not satisfied circumstance

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that the "due process ramifications" of an argument might be "self-evident."); Gray v.

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Netherland, 518 U.S. 152, 162-63, 116 S.Ct. 1074 (1996) (“a claim for relief in habeas corpus

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must include reference to a specific federal constitutional guarantee, as well as a statement of the

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facts which entitle the petitioner to relief.”).

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Additionally, the petitioner must have specifically told the state court that he was raising

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a federal constitutional claim. Duncan, 513 U.S. at 365-66; Lyons v. Crawford, 232 F.3d 666,

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669 (9th Cir.2000), amended, 247 F.3d 904 (2001); Hiivala v. Wood, 195 F.3d 1098, 1106 (9th

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Cir.1999); Keating v. Hood, 133 F.3d 1240, 1241 (9th Cir.1998).

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Petitioner does not indicate whether he has exhausted the state court remedies with

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respect to any cognizable habeas corpus claims. To the extent, Petitioner wishes to raise claims

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cognizable under § 2254, the claims must have been exhausted to the state’s highest court.
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III.

Failure to State a Cognizable Claim
A federal court may only grant a petition for writ of habeas corpus if the petitioner can

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show that "he is in custody in violation of the Constitution . . . ." 28 U.S.C. § 2254(a). A habeas

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corpus petition is the correct method for a prisoner to challenge the “legality or duration” of his

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confinement. Badea v. Cox, 931 F.2d 573, 574 (9th Cir. 1991), quoting, Preiser v. Rodriguez,

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411 U.S. 475, 485 (1973); Advisory Committee Notes to Rule 1 of the Rules Governing Section

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2254 Cases. In contrast, a civil rights action pursuant to 42 U.S.C. § 1983 is the proper method

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for a prisoner to challenge the conditions of that confinement. McCarthy v. Bronson, 500 U.S.

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136, 141-42 (1991); Preiser, 411 U.S. at 499; Badea, 931 F.2d at 574; Advisory Committee

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Notes to Rule 1 of the Rules Governing Section 2254 Cases.
In this case, Petitioner does not allege facts that point to a real possibility of

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constitutional error that affected the legality or duration of his confinement. Thus, Petitioner has

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not alleged facts that would entitle him to habeas relief. Thus, the petition must be dismissed.

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A petition for habeas corpus should not be dismissed without leave to amend unless it

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appears that no tenable claim for relief can be pleaded were such leave granted. Jarvis v. Nelson,

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440 F.2d 13, 14 (9th Cir. 1971).

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Here, although Petitioner has not alleged facts that would entitle him to relief, it is

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possible that Petitioner could allege such facts. Accordingly, Petitioner will be granted leave to

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file a first amended petition. Petitioner is advised that failure to file a petition in compliance

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with this order (i.e., a completed petition with cognizable federal claims clearly stated and with

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exhaustion of state remedies clearly stated) within the allotted time will result in a

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recommendation that the petition be dismissed and the action be terminated. Petitioner is

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advised that the amended petition should be entitled, “First Amended Petition,” and it must refer

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to the case number in this action. Further, Petitioner is informed that Local Rule 220 provides

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that unless prior approval to the contrary is obtained from the Court, every pleading as to which

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an amendment or supplement is permitted shall be retyped or rewritten and filed so that it is

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complete in itself without reference to the prior or superseded pleading.

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ORDER

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Based on the foregoing, it is HEREBY ORDERED that:

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The instant petition for writ of habeas corpus is DISMISSED;

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2.

Within thirty (30) days Petitioner shall file an amended petition; and

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3.

Failure to comply with this order will result in dismissal of the petition and such

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dismissal constitutes an adjudication on the merits. Fed. R. Civ. P. 41(b).
IT IS SO ORDERED.
Dated:
3b142a

January 4, 2012

/s/ Dennis L. Beck
UNITED STATES MAGISTRATE JUDGE

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