Butler v. People of the State of California

Filing 14

ORDER signed by Magistrate Judge Gregory G. Hollows on 9/14/11 denying 13 Motion. This case is DISMISSED. CASE CLOSED. (Dillon, M)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ARNOLD D. BUTLER,

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Plaintiff,

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No. CIV S-11-1052 GGH P

vs.
PEOPLE OF THE STATE OF
CALIFORNIA,

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Defendants.

ORDER

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/
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Plaintiff is an inmate at Butte County Jail and is proceeding pro se. Plaintiff has

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consented to the jurisdiction of the undersigned. See Docket # 5. By order filed on May 24,

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2011, plaintiff’s “woefully deficient” initial filing, a purported civil rights complaint, was

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stricken and plaintiff was granted leave within twenty-eight days to file an amended complaint

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and either the appropriate in forma application or the filing fee. Plaintiff thereafter filed a

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purported amended complaint and paid the $350.00 filing fee in full. The amended complaint

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was dismissed by order, filed on June 17, 2011, for having provided wholly inadequate

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information upon which plaintiff could proceed. Plaintiff was granted leave to file, within

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twenty-eight days, a second amended complaint. Plaintiff failed to file a second amended

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complaint.
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Instead, plaintiff, on June 22, 2011, filed a notice to the Clerk of the Court that he

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intended to file a petition for writ of habeas corpus and noting that he had paid a $350.00 filing

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fee for what he intended to be a habeas corpus petition. On June 28, 2011, plaintiff filed a

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request to “change to code from a law su[it] to a habeas corpus.” Docket # 12. He sought to file

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a habeas petition naming the State of California as respondent for allegedly violating plaintiff’s

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due process rights; he also wished to raise an ineffective assistance of counsel claim. The most

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information he provides is that he is “seeking relief on my prior case.” Id.

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Thereafter, on July 5, 2011, plaintiff filed a document entitled “2254 motion” and
setting forth in the motion caption the following: “1. Ineffective Assistance of Counsel; 2.

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Violation of Due Process Rights; 3. Constitutional Right Violated.” Docket # 13. Plaintiff in

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this putative motion asks the court “to take the action under nonprotunc [sic].” Id. Plaintiff then

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sets forth a litany of claims regarding a 1992 conviction for possession for sale and intent to

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deliver rock cocaine base for which he was sentenced to four years in prison and four years on

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supervised release. Plaintiff claims to have “been fighting this prior for 12 years.” Id., at 2. He

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believes that the state courts have never properly considered his claims for various reasons, one

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being that his letters to the courts have often been filed in another individual’s court files because

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plaintiff had been a victim of identity theft of this individual who had been charged with the

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murder of a police officer.

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On the face of it, it does not appear that plaintiff can proceed herein as petitioner

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under 28 U.S.C. § 2254 on his challenges to his 1992 conviction and sentence because he it does

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not appear to be possible that he is in custody pursuant to that judgment. Maleng v. Cook, 490

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U.S. 488, 490, 109 S. Ct. 1923 (1989)(“[w]e have never held...that a habeas petitioner may be ‘in

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custody’ under a conviction when the sentence imposed for that conviction has fully expired at

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the time his petition is filed” [emphasis in original]). Plaintiff states that he was sentenced to

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four years in prison plus four years of supervised release; thus, it would seen that he was no

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longer in custody for any purpose on this conviction as of 2000 or thereabouts, more than a
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decade ago. Moreover, even if plaintiff (petitioner) was seeking to attack the prior conviction

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because it was being used (or had been used) to enhance a present sentence, absent a claim that

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no counsel was provided whatsoever, alleged errors in the prior conviction is not actionable.

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Lackawanna County District Attorney v. Coss, 532 U.S. 394, 406, 121 S.Ct. 1567 (2001).

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As plaintiff does not wish to proceed under 42 U.S.C. § 1983 and it does not

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appear that he has any basis to proceed under 28 U.S.C.§ 2254, the court will dismiss this action.

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Plaintiff’s inapposite motion, filed on July 5, 2011, will be denied.

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Accordingly, IT IS ORDERED that:

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1. Plaintiff’s motion, filed on July 5, 2011 (docket # 13), is denied as both

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inapposite and moot; and

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2. This case is dismissed.
DATED: September 14, 2011

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/s/ Gregory G. Hollows
UNITED STATES MAGISTRATE JUDGE

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GGH:009

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butl1052.ord

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