Irving v. Davey

Filing 36

ORDER signed by Magistrate Judge Allison Claire on 06/12/17 ordering petitioner's amended application for writ of habeas corpus 25 is dismissed with leave to amend. Petitioner shall have 30 days from service of this order to file a second amended petition. The clerk of the court shall send petitioner the court's form for application for a writ of habeas corpus. (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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BOYDD D.J. IRVING,

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No. 2:15-cv-2037 AC P

Petitioner,

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v.

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DAVE DAVEY,

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ORDER

Respondent.

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Petitioner, a state prisoner proceeding pro se, has filed an application for a writ of habeas

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corpus pursuant to 28 U.S.C. § 2254. Petitioner has consented to the jurisdiction of the

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undersigned magistrate judge for all purposes pursuant to 28 U.S.C. § 636(c) and Local Rule

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305(a). ECF No. 5. Also before the court are petitioner’s numerous “status reports’ regarding his

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conditions of confinement. ECF Nos. 26-35.

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I.

Status Reports

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Petitioner is advised that claims concerning the conditions of his confinement and

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violations of his constitutional rights are properly raised in a civil rights complaint filed pursuant

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to 42 U.S.C. § 1983, which provides a remedy for violations of civil rights by state actors. A

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habeas corpus petition is the correct method for a prisoner to challenge the “legality or duration”

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of his confinement. Badea v. Cox, 931 F.2d 573, 574 (9th Cir. 1991) (quoting Preiser v.

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Rodriguez, 411 U.S. 475, 485 (1973); 28 U.S.C. § 2254. Therefore, petitioner must bring any
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claims related to the conditions of his confinement in a civil rights action after the inmate

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grievance process has been properly exhausted. These matters will not be addressed in the

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context of this case.

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II.

Amended Petition
By order filed April 13, 2016, the original petition was dismissed with leave to amend

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because petitioner appeared to be attempting to challenge more than one judgment of conviction

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in a single petition. ECF No. 10. Specifically, the original petition identified two distinct state

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court cases, Sacramento Superior Court Case Nos. 01F04127 and 10F01569, but identified only

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one date for the conviction. ECF No. 1 at 1. In dismissing the petition, the court specifically

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advised petitioner that any petition related to Case No. 01F01569 would be a second or

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successive petition and that he could not proceed on those claims until receiving permission from

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the Ninth Circuit. ECF No. 10 at 2-3. Petitioner was also advised that he was required to provide

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the state court exhaustion information for each judgment separately and that his claims must also

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be stated separately. Id. at 3. Petitioner proceeded to file several motions for extension, and in

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one of the motions clarified that he was in fact attempting to pursue relief for two separate

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judgments of conviction. ECF No. 16 at 1. At that time, petitioner was “cautioned that separate

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criminal convictions must in most cases be challenged in separate habeas corpus proceedings.”

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ECF No. 17.

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Petitioner has now filed a first amended petition, but has failed to follow the court’s

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directions. Petitioner has failed to identify which conviction he is attempting to challenge and has

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simply directed the court to his original petition for the conviction and state court exhaustion

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information. ECF No. 25 at 1-3. Since the information provided related to petitioner’s

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conviction and state court exhaustion was insufficient in his original petition, his reliance on it in

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the amended petition does nothing to cure the defects identified by the court.

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Petitioner will be given one last chance to amend the petition. The amended petition must

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state which conviction petitioner is trying to challenge, Case No. 01F04127 or 10F01569. He

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must also complete the section of the petition relating to his exhaustion of state court remedies.

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Finally, if petitioner wants to challenge the conviction in Case No. 01F04127, which he already
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tried to challenge in federal court in Irving v. People of the State of California, No. 2:05-cv-01621

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LKK CMK, he must provide a copy of an order from the Ninth Circuit allowing this court to

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consider the claims or they will be dismissed.

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In accordance with the above, IT IS HEREBY ORDERED that:

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1. Petitioner’s amended application for writ of habeas corpus (ECF No. 25) is dismissed

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with leave to amend. Petitioner shall have thirty days from service of this order to file a second

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amended petition. The second amended petition must comply with the instructions outlined

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above.

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2. The Clerk of the Court is directed to send petitioner the court’s form for application for

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writ of habeas corpus.

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DATED: June 12, 2017

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