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)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ANGELIQUE E. NASH,

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Petitioner,

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No. 1:17-cv-00238-AWI-JLT (HC)
ORDER VACATING FINDINGS AND
RECOMMENDATION (Doc. 4)

v.
ON HABEAS CORPUS,

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ORDER DISMISSING PETITION WITH
LEAVE TO AMEND (Doc. 1)

Respondent.

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Petitioner filed a habeas petition on February 17, 2017, challenging her 2013 conviction in

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Kern County Superior Court for first degree murder with special circumstances. Upon review of

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the petition, it appeared that Petitioner had not sought relief in the California Supreme Court.

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Therefore, the Court issued a Findings and Recommendation to summarily dismiss the petition

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for failure to exhaust state remedies. On March 28, 2017, Petitioner filed objections in which she

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states she has in fact sought relief in the California Supreme Court. Therefore, the Court will

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vacate the Findings and Recommendation. However, the petition that was filed with the Court

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contains no grounds for relief. Therefore, the petition will be DISMISSED with leave to amend.

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DISCUSSION

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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
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entitled to relief in the district court . . . .” Rule 4 of the Rules Governing Section 2254 Cases.

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The Advisory Committee Notes to Rule 8 indicate that the court may dismiss a petition for writ of

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habeas corpus, either on its own motion under Rule 4, pursuant to the respondent’s motion to

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dismiss, or after an answer to the petition has been filed. Herbst v. Cook, 260 F.3d 1039 (9th

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Cir.2001).

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B.

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Failure to State a Claim
Petitioner must state her claim with sufficient specificity. See Hendricks v. Vasquez, 908

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F.2d 490, 491-92 (9th Cir. 1990); Wacht v. Cardwell, 604 F.2d 1245, 1246-47 (9th Cir.1979).

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Rule 2(c) of the Rules Governing Section 2254 Cases (emphasis added) states:

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The petition must:

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(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.

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The instant petition presents no claims for relief. In the space provided on the form

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petition for specifying her grounds, Petitioner indicates: “Please see attached.” However, no

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memorandum setting forth any grounds for relief is attached. The only document attached is a

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copy of the appellate opinion of the Fifth Appellate District Court of the California Court of

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Appeal (“Fifth DCA”). If Petitioner intended the opinion of the appellate court to function as her

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statement of grounds for relief, this is improper. The federal district court does not function as a

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court of appeals to the Fifth DCA.

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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.

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(emphasis added). See also Rule 1 to the Rules Governing Section 2254 Cases in the United

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States District Court. Therefore, Petitioner’s claims must be premised on a violation of the
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Constitution or Federal law, not State law. Estelle v. McGuire, 502 U.S. 62, 67 (1991) (“We have

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stated many times that federal habeas corpus relief does not lie for errors of state law); Langford

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v. Day, 110 F.3d 1380, 1389 (9th Cir. 1997) (“alleged errors in the application of state law are not

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cognizable in federal habeas corpus” proceedings).

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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

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(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.

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28 U.S.C. § 2254(d)(1),(2).

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Here, Petitioner fails to specify any grounds for relief and she fails to demonstrate how the

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adjudication of those grounds for relief were contrary to or an unreasonable application of

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Supreme Court authority. Therefore, the petition will be dismissed with leave to amend.

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C.

Failure to Name a Proper Respondent

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In this case, Petitioner fails to name a respondent. A petitioner seeking habeas corpus

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relief under 28 U.S.C. § 2254 must name the state officer having custody of her as the respondent

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to the petition. Rule 2 (a) of the Rules Governing § 2254 Cases; Ortiz-Sandoval v. Gomez, 81

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F.3d 891, 894 (9th Cir. 1996); Stanley v. California Supreme Court, 21 F.3d 359, 360 (9th Cir.

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1994). Normally, the person having custody of an incarcerated petitioner is the warden of the

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prison in which the petitioner is incarcerated because the warden has "day-to-day control over"

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the petitioner. Brittingham v. United States, 982 F.2d 378, 379 (9th Cir. 1992); see also Stanley,

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21 F.3d at 360. However, the chief officer in charge of state penal institutions is also appropriate.

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Ortiz, 81 F.3d at 894; Stanley, 21 F.3d at 360. Where a petitioner is on probation or parole, the

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proper respondent is her probation or parole officer and the official in charge of the parole or

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probation agency or state correctional agency. Id.

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

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for lack of jurisdiction. Stanley, 21 F.3d at 360; Olson v. California Adult Auth., 423 F.2d 1326,

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1326 (9th Cir. 1970); see also Billiteri v. United States Bd. Of Parole, 541 F.2d 938, 948 (2nd
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Cir. 1976). However, the Court will give Petitioner the opportunity to cure this defect by

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amending the petition to name a proper respondent, such as the warden of her facility. See West

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v. Louisiana, 478 F.2d 1026, 1029 (5th Cir. 1973), vacated in part on other grounds, 510 F.2d

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363 (5th Cir. 1975) (en banc) (allowing petitioner to amend petition to name proper respondent);

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Ashley v. State of Washington, 394 F.2d 125 (9th Cir. 1968) (same).

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ORDER

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The Court ORDERS:

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1) The Findings and Recommendation issued on March 2, 2017, is VACATED;

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2) The petition for writ of habeas corpus is DISMISSED; and

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3) Petitioner is GRANTED thirty days to file an amended petition.

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IT IS SO ORDERED.
Dated:

March 30, 2017

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

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