Stone v Martel, et al.,

Filing 34

ORDER signed by Magistrate Judge Gregory G. Hollows on 05/03/11 denying motions to Dismiss 19 , 20 . Petitioner's motion pusuant to Penal Code 1494 and 1501 23 is denied. Petitioner's motion for an answer 26 is denied. (Plummer, M)

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1 2 3 4 5 6 7 IN THE UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 AARON P. STONE, Petitioner, 10 11 12 13 vs. M. MARTEL, et al., Respondents. ORDER / 14 15 No. CIV S-10-3454 KJM GGH P Petitioner is a state prisoner proceeding pro se with this application for a writ of 16 habeas corpus pursuant to 28 U.S.C. § 2254. The court herein rules on four motions recently 17 filed by petitioner: (1) a motion to dismiss filed on April 8, 2011; (2) a motion to dismiss filed on 18 April 12, 2011; (3) a motion “pursuant to Penal Code 1494 and 1501” filed on April 14, 2011; 19 and (4) a motion for an answer filed on April 15, 2011. Respondent has filed oppositions to 20 each of the four motions. For the reasons discussed below, all four motions are denied. 21 First Motion to Dismiss 22 As respondent notes, the precise basis for petitioner’s April 8, 2011 motion to 23 dismiss is unclear. He states: “On December 15, 2006, Sacramento Superior Court imposed a 24 void judgment which was reversed on direct appeal on July 31, 2008. The law is well established 25 that a void judgment is void even before reversal.” (Doc. #19 at 1.) Elsewhere petitioner states 26 that “Case No. #06F2346 . . . merits dismissal with prejudice” due to “numerous due process 1 violations[.]” (Id. at 2.) In an attempt to shed light on the motion, respondent has submitted a 2 July 31, 2008 opinion by the California Court of Appeal, Third Appellate District, reviewing 3 petitioner’s conviction of six counts of child molestation in Superior Ct. Case No. 06F02346. 4 (Doc. #21 , Lodged Item No. 1.) Rather than hazard a guess as to what part of the superior 5 court’s judgment petitioner considers “void,” the undersigned observes that it lacks jurisdiction 6 to grant petitioner’s motion in any event. Petitioner’s complaint in this action has been construed 7 to challenge his conviction and sentence under 28 U.S.C. § 2254, with its attendant procedural 8 and exhaustion requirements. Petitioner cannot circumvent these requirements by simply 9 moving to dismiss state court judgments with which he disagrees. Thus, this motion is denied. 10 11 Second Motion to Dismiss The basis for petitioner’s April 12, 2011 motion to dismiss is also unclear. In it, 12 petitioner refers to his appellate and superior court cases discussed above, alleges false 13 imprisonment, and asserts that his reception into CDCR custody was invalid and based on 14 “fraudulent information.” (Doc. #20 at 1-2.) As with petitioner’s first motion, these allegations 15 cannot serve as a basis for the undersigned to dismiss any part of a state court judgment. Rather, 16 “[c]hallenges to the validity of any confinement or to particulars affecting its duration are the 17 province of habeas corpus.” Preiser v. Rodriguez, 411 U.S. 475, 500, 93 S.Ct. 1827 (1973). 18 This motion also is denied. 19 Motion Pursuant to Penal Code 1494 and 1501 20 In this motion, petitioner appears to seek preliminary injunctive relief 21 “commit[ting] him to the custody of the Sacramento Sheriff or. . . federal custody” pending 22 judgment in this matter. The statutes he cites, California Penal Code sections 1494 and 1501, 23 pertain to petitions for writ of habeas corpus in state court and cannot serve as a basis for relief. 24 Nor can the court properly grant petitioner’s request under federal law. The 25 purpose of a preliminary injunction is to preserve the status quo if the balance of equities so 26 heavily favors the moving party that justice requires the court to intervene to secure the positions 1 until the merits of the action are ultimately determined. University of Texas v. Camenisch, 451 2 U.S. 390, 395, 101 S.Ct (1981). In this habeas action, petitioner challenges his conviction and 3 sentence based on alleged due process violations. Because an order temporarily placing 4 petitioner in county or federal custody would not remedy the claims upon which this action 5 proceeds, the court may not issue the order sought by petitioner. See De Beers Consolidated 6 Mines v. United States, 325 U.S. 212, 65 S.Ct. 1130 (1945). Moreover, even if the undersigned 7 were to consider the matter under the jurisdiction preservation aspect of the All Writs Act, 28 8 U.S.C. § 1651, petitioner has offered no evidence demonstrating a fair chance of success on the 9 merits of his complaint. This motion is therefore denied. 10 Motion for an Answer In this motion, petitioner seeks an answer to his petition and documents from 11 12 respondent that pertain to petitioner’s imprisonment in Mule Creek State Prison. By order dated 13 January 10, 2011, the undersigned directed respondent to file a response to the petition within 14 sixty days. By order dated April 18, 2011, granting respondent’s request for an extension of 15 time, the response is now due on or before May 11, 2011. In his opposition to the instant motion, 16 respondent states that he intends to file a response to the petition and, in doing so, will comply 17 with Rule 5 of the Federal Rules governing § 2254 cases. Respondent further states that, if the 18 response is an answer, he will lodge with the court “all transcripts and other documents relevant 19 to the issues presented in the petition.” (Doc. #29 at 2.) Nothing more is required of respondent 20 at this time. Thus, petitioner’s motion for an answer is denied. 21 ///// 22 ///// 23 ///// 24 ///// 25 ///// 26 ///// 1 Accordingly, IT IS HEREBY ORDERED THAT: 2 1. Petitioner’s April 8, 2011 motion to dismiss (Doc. #19) is denied; 3 2. Petitioner’s April 12, 2011 motion to dismiss (Doc. #20) is denied; 4 3. Petitioner’s April 14, 2011 motion pursuant to Penal Code 1494 and 1501 5 (Doc. #23) is denied; and 4. Petitioner’s April 15, 2011 motion for an answer (Doc. #26) is denied. 6 7 DATED: May 3, 2011 8 /s/ Gregory G. Hollows 9 GREGORY G. HOLLOWS UNITED STATES MAGISTRATE JUDGE 10 11 GGH:014 ston3454.ord 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

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