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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 BOYDD D.J. IRVING, 12 No. 2:15-cv-2037 AC P Petitioner, 13 v. 14 DAVE DAVEY, 15 ORDER Respondent. 16 Petitioner, a state prisoner proceeding pro se, has filed an application for a writ of habeas 17 18 corpus pursuant to 28 U.S.C. § 2254. Petitioner has consented to the jurisdiction of the 19 undersigned magistrate judge for all purposes pursuant to 28 U.S.C. § 636(c) and Local Rule 20 305(a). ECF No. 5. Also before the court are petitioner’s numerous “status reports’ regarding his 21 conditions of confinement. ECF Nos. 26-35. 22 I. Status Reports 23 Petitioner is advised that claims concerning the conditions of his confinement and 24 violations of his constitutional rights are properly raised in a civil rights complaint filed pursuant 25 to 42 U.S.C. § 1983, which provides a remedy for violations of civil rights by state actors. A 26 habeas corpus petition is the correct method for a prisoner to challenge the “legality or duration” 27 of his confinement. Badea v. Cox, 931 F.2d 573, 574 (9th Cir. 1991) (quoting Preiser v. 28 Rodriguez, 411 U.S. 475, 485 (1973); 28 U.S.C. § 2254. Therefore, petitioner must bring any 1 1 claims related to the conditions of his confinement in a civil rights action after the inmate 2 grievance process has been properly exhausted. These matters will not be addressed in the 3 context of this case. 4 5 II. Amended Petition By order filed April 13, 2016, the original petition was dismissed with leave to amend 6 because petitioner appeared to be attempting to challenge more than one judgment of conviction 7 in a single petition. ECF No. 10. Specifically, the original petition identified two distinct state 8 court cases, Sacramento Superior Court Case Nos. 01F04127 and 10F01569, but identified only 9 one date for the conviction. ECF No. 1 at 1. In dismissing the petition, the court specifically 10 advised petitioner that any petition related to Case No. 01F01569 would be a second or 11 successive petition and that he could not proceed on those claims until receiving permission from 12 the Ninth Circuit. ECF No. 10 at 2-3. Petitioner was also advised that he was required to provide 13 the state court exhaustion information for each judgment separately and that his claims must also 14 be stated separately. Id. at 3. Petitioner proceeded to file several motions for extension, and in 15 one of the motions clarified that he was in fact attempting to pursue relief for two separate 16 judgments of conviction. ECF No. 16 at 1. At that time, petitioner was “cautioned that separate 17 criminal convictions must in most cases be challenged in separate habeas corpus proceedings.” 18 ECF No. 17. 19 Petitioner has now filed a first amended petition, but has failed to follow the court’s 20 directions. Petitioner has failed to identify which conviction he is attempting to challenge and has 21 simply directed the court to his original petition for the conviction and state court exhaustion 22 information. ECF No. 25 at 1-3. Since the information provided related to petitioner’s 23 conviction and state court exhaustion was insufficient in his original petition, his reliance on it in 24 the amended petition does nothing to cure the defects identified by the court. 25 Petitioner will be given one last chance to amend the petition. The amended petition must 26 state which conviction petitioner is trying to challenge, Case No. 01F04127 or 10F01569. He 27 must also complete the section of the petition relating to his exhaustion of state court remedies. 28 Finally, if petitioner wants to challenge the conviction in Case No. 01F04127, which he already 2 1 tried to challenge in federal court in Irving v. People of the State of California, No. 2:05-cv-01621 2 LKK CMK, he must provide a copy of an order from the Ninth Circuit allowing this court to 3 consider the claims or they will be dismissed. 4 In accordance with the above, IT IS HEREBY ORDERED that: 5 1. Petitioner’s amended application for writ of habeas corpus (ECF No. 25) is dismissed 6 with leave to amend. Petitioner shall have thirty days from service of this order to file a second 7 amended petition. The second amended petition must comply with the instructions outlined 8 above. 9 2. The Clerk of the Court is directed to send petitioner the court’s form for application for 10 writ of habeas corpus. 11 DATED: June 12, 2017 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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