Nash v. Unknown

Filing 9

ORDER VACATING Findings and Recommendations 4 ; ORDER DISMISSING PETITION WITH LEAVE TO AMEND 1 , signed by Magistrate Judge Jennifer L. Thurston on 3/30/17: 30-Day Deadline. (Attachments: # 1 2254 Petition - blank form)(Hellings, J)

Download PDF
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 ANGELIQUE E. NASH, 12 Petitioner, 13 14 No. 1:17-cv-00238-AWI-JLT (HC) ORDER VACATING FINDINGS AND RECOMMENDATION (Doc. 4) v. ON HABEAS CORPUS, 15 ORDER DISMISSING PETITION WITH LEAVE TO AMEND (Doc. 1) Respondent. 16 Petitioner filed a habeas petition on February 17, 2017, challenging her 2013 conviction in 17 18 Kern County Superior Court for first degree murder with special circumstances. Upon review of 19 the petition, it appeared that Petitioner had not sought relief in the California Supreme Court. 20 Therefore, the Court issued a Findings and Recommendation to summarily dismiss the petition 21 for failure to exhaust state remedies. On March 28, 2017, Petitioner filed objections in which she 22 states she has in fact sought relief in the California Supreme Court. Therefore, the Court will 23 vacate the Findings and Recommendation. However, the petition that was filed with the Court 24 contains no grounds for relief. Therefore, the petition will be DISMISSED with leave to amend. 25 DISCUSSION 26 27 28 A. Preliminary Review of Petition Rule 4 of the Rules Governing Section 2254 Cases allows a district court to dismiss a petition if it “plainly appears from the petition and any attached exhibits that the petitioner is not 1 1 entitled to relief in the district court . . . .” Rule 4 of the Rules Governing Section 2254 Cases. 2 The Advisory Committee Notes to Rule 8 indicate that the court may dismiss a petition for writ of 3 habeas corpus, either on its own motion under Rule 4, pursuant to the respondent’s motion to 4 dismiss, or after an answer to the petition has been filed. Herbst v. Cook, 260 F.3d 1039 (9th 5 Cir.2001). 6 B. 7 Failure to State a Claim Petitioner must state her claim with sufficient specificity. See Hendricks v. Vasquez, 908 8 F.2d 490, 491-92 (9th Cir. 1990); Wacht v. Cardwell, 604 F.2d 1245, 1246-47 (9th Cir.1979). 9 Rule 2(c) of the Rules Governing Section 2254 Cases (emphasis added) states: 10 The petition must: 11 (1) specify all the grounds for relief available to the petitioner; (2) state the facts supporting each ground; (3) state the relief requested; (4) be printed, typewritten, or legibly handwritten; and (5) be signed under penalty of perjury by the petitioner or by a person authorized to sign it for the petitioner under 28 U.S.C. § 2242. 12 13 14 15 The instant petition presents no claims for relief. In the space provided on the form 16 petition for specifying her grounds, Petitioner indicates: “Please see attached.” However, no 17 memorandum setting forth any grounds for relief is attached. The only document attached is a 18 copy of the appellate opinion of the Fifth Appellate District Court of the California Court of 19 Appeal (“Fifth DCA”). If Petitioner intended the opinion of the appellate court to function as her 20 statement of grounds for relief, this is improper. The federal district court does not function as a 21 court of appeals to the Fifth DCA. 22 23 24 25 26 The basic scope of habeas corpus is prescribed by statute. Title 28 U.S.C. § 2254(a) states: The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to a judgment of a State court only on the ground that [s]he is in custody in violation of the Constitution or laws or treaties of the United States. 27 (emphasis added). See also Rule 1 to the Rules Governing Section 2254 Cases in the United 28 States District Court. Therefore, Petitioner’s claims must be premised on a violation of the 2 1 Constitution or Federal law, not State law. Estelle v. McGuire, 502 U.S. 62, 67 (1991) (“We have 2 stated many times that federal habeas corpus relief does not lie for errors of state law); Langford 3 v. Day, 110 F.3d 1380, 1389 (9th Cir. 1997) (“alleged errors in the application of state law are not 4 cognizable in federal habeas corpus” proceedings). 5 6 Furthermore, in order to succeed in a petition pursuant to 28 U.S.C. § 2254, Petitioner must demonstrate that the adjudication of her claims in state court 7 (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. 8 9 10 28 U.S.C. § 2254(d)(1),(2). 11 Here, Petitioner fails to specify any grounds for relief and she fails to demonstrate how the 12 adjudication of those grounds for relief were contrary to or an unreasonable application of 13 Supreme Court authority. Therefore, the petition will be dismissed with leave to amend. 14 C. Failure to Name a Proper Respondent 15 In this case, Petitioner fails to name a respondent. A petitioner seeking habeas corpus 16 relief under 28 U.S.C. § 2254 must name the state officer having custody of her as the respondent 17 to the petition. Rule 2 (a) of the Rules Governing § 2254 Cases; Ortiz-Sandoval v. Gomez, 81 18 F.3d 891, 894 (9th Cir. 1996); Stanley v. California Supreme Court, 21 F.3d 359, 360 (9th Cir. 19 1994). Normally, the person having custody of an incarcerated petitioner is the warden of the 20 prison in which the petitioner is incarcerated because the warden has "day-to-day control over" 21 the petitioner. Brittingham v. United States, 982 F.2d 378, 379 (9th Cir. 1992); see also Stanley, 22 21 F.3d at 360. However, the chief officer in charge of state penal institutions is also appropriate. 23 Ortiz, 81 F.3d at 894; Stanley, 21 F.3d at 360. Where a petitioner is on probation or parole, the 24 proper respondent is her probation or parole officer and the official in charge of the parole or 25 probation agency or state correctional agency. Id. 26 Petitioner’s failure to name a proper respondent requires dismissal of her habeas petition 27 for lack of jurisdiction. Stanley, 21 F.3d at 360; Olson v. California Adult Auth., 423 F.2d 1326, 28 1326 (9th Cir. 1970); see also Billiteri v. United States Bd. Of Parole, 541 F.2d 938, 948 (2nd 3 1 Cir. 1976). However, the Court will give Petitioner the opportunity to cure this defect by 2 amending the petition to name a proper respondent, such as the warden of her facility. See West 3 v. Louisiana, 478 F.2d 1026, 1029 (5th Cir. 1973), vacated in part on other grounds, 510 F.2d 4 363 (5th Cir. 1975) (en banc) (allowing petitioner to amend petition to name proper respondent); 5 Ashley v. State of Washington, 394 F.2d 125 (9th Cir. 1968) (same). 6 ORDER 7 The Court ORDERS: 8 1) The Findings and Recommendation issued on March 2, 2017, is VACATED; 9 2) The petition for writ of habeas corpus is DISMISSED; and 10 3) Petitioner is GRANTED thirty days to file an amended petition. 11 12 13 IT IS SO ORDERED. Dated: March 30, 2017 /s/ Jennifer L. Thurston UNITED STATES MAGISTRATE JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4

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?