Bolton v. McEwen

Filing 19

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 9/2/14 RECOMMENDING that 13 MOTION to DISMISS be granted; and the petition be dismissed for lack of subject matter jurisdiction. Referred to Judge Garland E. Burrell, Jr.; Objections to F&R due within 14 days.(Dillon, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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D’ARSEY L. BOLTON,

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No. 2:14-cv-0803 GEB CKD P

Petitioner,
v.

FINDINGS AND RECOMMENDATIONS

SCOTT McEWEN,

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Respondent.

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Petitioner, a state prisoner proceeding pro se and in forma pauperis, has filed an

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application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. (ECF No. 1 (“Ptn.”))

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Before the court is respondent’s July 9, 2014 motion to dismiss the petition for untimeliness.

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(ECF No. 13.) Petitioner has filed an opposition (ECF No. 14), and respondent has filed a reply

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(ECF No. 16).

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I. Procedural History

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In his petition, petitioner indicates that he asserted various grounds for relief in the

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California Court of Appeal and California Supreme Court on direct appeal of his conviction.

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(Ptn. at 2.) He also asserted certain grounds for relief in the state superior court on post-

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conviction collateral review. (Id. at 3.) In his federal petition, however, petitioner raises only one

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ground for relief: He was “denied the right to a free transcript” in his state habeas proceedings.

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Petitioner asserts this was a violation of his federal right to due process. (Id. at 6.)

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The court ordered the petition served on respondent and directed respondent to file a

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response. (ECF No. 5.) Respondent subsequently filed his motion to dismiss on the ground of

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untimeliness. (ECF No. 13.) In his opposition to the motion, petitioner requested that the court

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“hear this petition on account that petitioner needs his trial transcripts on . . . habeas corpus and

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further appeals processes.” (ECF No. 14.)

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Respondent filed a reply, asserting for the first time that the court lacks jurisdiction to

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consider the petition because its sole claim does not satisfy the “in custody” requirement of 28

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U.S.C. § 2254(a). (ECF No. 16.) Respondent noted that the motion to dismiss “inadvertently

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failed to challenge whether Petitioner satisfied the ‘in custody’ requirement” and stated that he

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had no objection to petitioner filing a sur-reply. (Id. at 2, n.2.) Petitioner filed a sur-reply,

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arguing that he is entitled to his trial transcript. Petitioner stated that “[t]here are no other claims

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[in] the present petition because petitioner do[es] not have any kind of supporting documents at

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this time to send to the courts for proof.” (ECF No. 18 at 2.)

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II. Analysis

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As a general rule, parties “cannot raise a new issue for the first time in their reply briefs.”

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State of Nev. v. Watkins, 914 F.2d 1545, 1560 (9th Cir. 1990); see also Cedano–Viera v.

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Ashcroft, 324 F.3d 1062, 1066 n.5 (9th Cir. 2003) (“[W]e decline to consider new issues raised

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for the first time in a reply brief.”), citing Thompson v. Commissioner, 631 F.2d 642, 649 (9th

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Cir. 1980).

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However, “[a] party may raise jurisdictional challenges at any time during the

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proceedings,” even on appeal for the first time. Attorneys Trust v. Videotape Computer Products,

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Inc., 93 F.3d 593, 595 (9th Cir. 1996). See Community Health Plan of Ohio v. Mosser, 347 F.3d

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619, 622 (6th Cir. 2003) (because existence of subject matter jurisdiction may be raised any time,

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by any party or sua sponte, “we will hear [defendant’s] subject matter jurisdiction issue despite

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the fact that he raised it for the first time in his reply brief.”), overruled on other grounds by

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Primax Recoveries, Inc. v. Gunter, 433 F.3d 515 (6th Cir. 2006). Thus the court considers
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respondent’s argument that the court lacks subject matter jurisdiction in this action.
Pursuant to 28 U.S.C. § 2254(a), “[t]he Supreme Court, a Justice thereof, a circuit judge,

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or a district court shall entertain an application for a writ of habeas corpus in behalf of a person in

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custody pursuant to the judgment of a State court only on the ground that he is in custody in

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violation of the Constitution or laws or treaties of the United States.” The “in custody”

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requirement is jurisdictional for a federal habeas court. Bailey v. Hill, 599 F.3d 976, 978 (9th Cir.

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2010). In Bailey, the Ninth Circuit observed that the “in custody” requirement of federal habeas

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law has two aspects. First, the petitioner must be “under the conviction or sentence under attack

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at the time his petition is filed.” Bailey, 599 F.3d at 978–979, quoting Resendiz v. Kovensky,

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416 F.3d 952, 956 (9th Cir. 2005). Second, section 2254(a) “explicitly requires a nexus between

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the petitioner’s claim and the unlawful nature of the custody.” Bailey, 599 F.3d at 980.

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Here, petitioner claims his due process rights were violated because he did not receive a

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free transcript for use in state habeas proceedings. This claim does not meet the “in custody”

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requirement of § 2254(a): Even if petitioner received the transcript, he “would still have to serve

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the rest of his custodial sentence in the same manner.” Bailey, 599 F.3d at 981. Thus the remedy

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sought “does not directly impact – and is not directed at the source of the restraint on – his

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liberty” so as to confer subject matter jurisdiction. Id. Moreover, the Ninth Circuit has held that

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federal habeas petitions asserting “error in the state post-conviction proceeding do not represent

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an attack on the prisoner’s detention and therefore are not proper grounds for habeas relief.”

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Franzen v. Brinkman, 877 F.2d 26 (9th Cir. 1989).

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Based on the foregoing, the undersigned concludes that the petition should be dismissed
for lack of subject matter jurisdiction.1

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Accordingly, IT IS HEREBY RECOMMENDED THAT:

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1. Respondent’s motion to dismiss (ECF No. 13) be granted; and

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2. The petition be dismissed for lack of subject matter jurisdiction.

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/////

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The court does not reach respondent’s alternative arguments for dismissal.
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These findings and recommendations are submitted to the United States District Judge

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assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days

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after being served with these findings and recommendations, any party may file written

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objections with the court and serve a copy on all parties. Such a document should be captioned

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“Objections to Magistrate Judge’s Findings and Recommendations.” The parties are

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advised that failure to file objections within the specified time may waive the right to appeal the

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District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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Dated: September 2, 2014

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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