Gary v. Department of Corrections et al

Filing 10

ORDER signed by Magistrate Judge Allison Claire on 08/22/18 ORDERING petitioner shall, within thirty days after the filing date of this order: (1) file a First Amended Petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, on the form provided herewith, AND (2) file a completed application to proceed in forma pauperis; OR (2) request the voluntary dismissal of this action without prejudice. The Clerk of Court is directed to: (1) designate on the docket that this action is filed p ursuant to 28 U.S.C. § 2254; (2) identify the respondent as Brandon Price, Executive Director, Coalinga State Hospital; and (3) send petitioner, together with a copy of this order: (a) a new application to proceed in forma pauperis, and (b) the form used by prisoners in this district to pursue a petition for writ of habeas corpus under 28 U.S.C. § 2254.(Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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REGINALD A. GARY,

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No. 2:16-cv-1060 AC P

Plaintiff,
v.

ORDER

DEPARTMENT OF CORRECTIONS, et
al.,
Defendants.

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Plaintiff commenced this action while incarcerated at Deuel Vocational Institution (DVI),

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under the authority of the California Department of Corrections and Rehabilitation (CDCR).

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Plaintiff alleged that DVI/CDCR miscalculated his sentence credits based on his May 1997

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sentence and wrongly denied him release. The complaint sought plaintiff’s immediate release

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from prison, credit to plaintiff’s term of parole for the days he was “held over,” and monetary

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compensation for the days he was “falsely imprisoned.” See ECF No. 1. The court construed the

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complaint as a putative petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, and

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accorded plaintiff the opportunity to submit a completed habeas petition. See ECF No. 6.

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Because the nature of this case remained unclear, the court deferred ruling on plaintiff’s motion to

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proceed in forma pauperis.

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Thereafter, plaintiff filed a partially completed habeas petition, ECF No. 9, and a notice of
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change of address to the Los Angeles County Jail, in which he stated that he was being held as a

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civil detainee awaiting a probable cause hearing on a Sexually Violent Predator (SVP) petition,

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ECF No. 8. Review of this court’s docket1 demonstrates that plaintiff is now incarcerated at

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Coalinga State Hospital, under the authority of the California Department of State Hospitals. See

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Gary v. Kincaid et al., Case No. 1:18-cv-0612 LJO BAM. Once a person is adjudicated a

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sexually violent predator, he is “committed for an indeterminate term to the custody of the State

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Department of State Hospitals for appropriate treatment and confinement in a secure facility

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designated by the Director of State Hospitals.” Cal. Welf. & Inst. Code § 6604.

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Several problems beset the proposed habeas petition, as set forth below. Plaintiff will be

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accorded an opportunity to correct these deficiencies in an amended habeas petition, or to request

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the voluntary dismissal of this action without prejudice. The court will direct that this case be

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designated an action in habeas corpus pursuant to 28 U.S.C. § 2254, with the proper respondent.

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The initial problem involves this court’s jurisdiction. Section 2254 authorizes a federal

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court to “entertain an application for a writ of habeas corpus in behalf of a person in custody

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

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the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). It is not clear

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from the current petition, even when read in tandem with the original complaint, whether plaintiff

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is currently “in custody” for purposes of challenging the calculation of his sentence credits based

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on his May 1997 sentence.

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The Supreme Court has construed Section 2254 to require that “the habeas petitioner be

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‘in custody’ under the conviction or sentence under attack at the time his petition is filed.”

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Maleng v. Cook, 490 U.S. 488, 490-91 (1989) (citation omitted) (finding federal petitioner “in

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custody” on a state sentence enhanced by an allegedly invalid prior state conviction). The Ninth

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Circuit Court of Appeals has held that a civilly committed habeas petitioner confined indefinitely

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See http://appellatecases.courtinfo.ca.gov/search.  This court may take judicial notice of its own
records and the records of other courts. See United States v. Howard, 381 F.3d 873, 876 n.1 (9th
Cir. 2004); United States v. Wilson, 631 F.2d 118, 119 (9th Cir. 1980); see also Fed. R. Evid. 201
(court may take judicial notice of facts that are capable of accurate determination by sources
whose accuracy cannot reasonably be questioned).
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pursuant to a SVP statute may challenge a prior, fully expired, criminal conviction upon a

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showing that the conviction served as a necessary predicate for petitioner’s current commitment.

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See Brock v. Weston, 31 F.3d 887, 889-90 (9th Cir. 1994) (habeas petitioner confined indefinitely

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pursuant to the Washington SVP Act permitted to challenge a prior, fully expired criminal

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conviction upon a showing that the conviction served as a necessary predicate for petitioner’s

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current confinement).

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Although Brock was decided before the 1996 implementation of the Antiterrorism and

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Effective Death Penalty Act of 1996 (AEDPA), and Prison Litigation Reform Act (PLRA), the

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Ninth Circuit relied on Brock to hold, in 2001, that “a habeas petitioner is ‘in custody’ for the

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purposes of challenging an earlier, expired rape conviction, when he is incarcerated for failing to

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comply with a state sex offender registration law because the earlier rape conviction ‘is a

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necessary predicate’ to the failure to register charge.” Zichko v. Idaho, 247 F.3d 1015, 1019-20

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(9th Cir. 2001), as amended (June 5, 2001) (citing Brock, 31 F.3d at 890, for the “holding that the

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habeas petitioner could challenge an earlier, expired conviction while involuntarily committed for

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treatment as a violent sexual predator”). “It is well settled that a habeas corpus petitioner meets

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the statutory ‘in custody’ requirements when, at the time he files the petition [ ] ... he is in custody

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pursuant to another conviction that is positively and demonstrably related to the conviction he

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attacks.” Carter v. Procunier, 755 F.2d 1126, 1129 (5th Cir.1985) (quoted with approval by the

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Ninth Circuit in Zichko, 247 F.3d at 1019).

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As construed by another magistrate judge in this court, “[t]he cases of Zichko v. Idaho,

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247 F.3d 1015, 1020 (9th Cir. 2001), and Brock v. Weston, 31 F.3d 887 (9th Cir. 1994), stand for

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the proposition that a mental commitment ‘conviction’ bears a substantial nexus to a previous

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criminal conviction, if the criminal conviction is a necessary predicate to the civil commitment.”

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Townsend v. King, 2014 WL 2197553, at *3, 2014 U.S. Dist. LEXIS 72115 at *8 (E.D. Cal. May

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27, 2014) (Case No. 2:13-cv-00859 GEB GGH P (ECF No. 29 at 5)) (finding that petitioner’s

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current commitment as a mentally disordered offender (MDO), was necessarily predicated on his

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prior violent criminal conviction and thus rendered petitioner “in custody” for purposes of

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attacking the prior criminal conviction). While these authorities indicate that plaintiff in this case
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(hereafter “petitioner”) may meet the “in custody” requirement under 28 U.S.C. § 2254, petitioner

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must so demonstrate in an amended petition.2

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Next, and significantly, the proposed petition fails to set forth any grounds for relief. See

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ECF No. 9 at 4-5. Although it appears that petitioner anticipated the court would consider the

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petition in tandem with the complaint, that is not the case – a proposed petition for writ of habeas

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corpus filed pursuant to 28 U.S.C. § 2254 must be complete in itself. Appropriate exhibits may

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be attached, but the petition must contain all grounds for relief and all necessary factual

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allegations and not rely on any other document for completeness.

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The current petition also fails to demonstrate whether petitioner exhausted his state court

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remedies or, if not, whether a stay of this proceeding is requested to do so. The petition states

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generally that an appeal to the California Supreme Court was previously filed, without providing

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further information, see id. at 3, and that a petition or appeal was then currently pending in an

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unidentified state or federal court, id. at 5. Section 2254 authorizes a federal court to grant only

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those federal claims that were previously exhausted in the state courts. 28 U.S.C. § 2254(b).

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Although an unexhausted habeas petition may, under limited circumstances, be stayed pending

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exhaustion, the petitioner must show that “‘[1] petitioner had good cause for his failure to

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exhaust, [2] his unexhausted claims are potentially meritorious, and [3] there is no indication that

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the petitioner engaged in intentionally dilatory litigation tactics.’” Mena v. Long, 813 F.3d 907,

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910 (9th Cir. 2016) (quoting Rhines v. Weber, 544 U.S. 269, 278 (2005)). The instant petition

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does not address exhaustion.

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Finally, the proposed petition does not comply with the requirement that a federal petition

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for writ of habeas corpus name as respondent the state officer having current custody of the

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petitioner. See 28 U.S.C. § 2254; Rule 2(a) of the Rules Governing Section 2254 Cases in the

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United States District Courts. Nevertheless, the court will direct the Clerk of Court to designate

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Should petitioner seek instead to challenge his SVP commitment directly, he must do so in a
new case with a new petition. “It is well established that detainees under an involuntary civil
commitment scheme such as SVPA may use a § 2254 habeas petition to challenge a term of
confinement.” Huftile v. Miccio-Fonseca, 410 F.3d 1136, 1139-40 (9th Cir. 2005) (citing Duncan
v. Walker, 533 U.S. 167, 176 (2001)).
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this action as one filed pursuant to 28 U.S.C. § 2254, and identify the respondent as the Executive

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Director of Coalinga State Hospital.3

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For these several reasons, IT IS HEREBY ORDERED that:

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1. Petitioner shall, within thirty (30) dates after the filing date of this order: (1) file a First

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Amended Petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, on the form provided

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herewith, AND (2) file a completed application to proceed in forma pauperis; OR (2) request the

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voluntary dismissal of this action without prejudice.

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2. The Clerk of Court is directed to: (1) designate on the docket that this action is filed
pursuant to 28 U.S.C. § 2254; (2) identify the respondent as Brandon Price, Executive Director,

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Coalinga State Hospital; and (3) send petitioner, together with a copy of this order: (a) a new

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application to proceed in forma pauperis, and (b) the form used by prisoners in this district to

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pursue a petition for writ of habeas corpus under 28 U.S.C. § 2254.

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3. Failure of petitioner to timely comply with this order will result in a recommendation

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that this action be dismissed without prejudice.

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DATED: August 22, 2018

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Should petitioner indicate that he intends to proceed in this action with a First Amended
Petition, this court will then consider whether it is appropriate to transfer this case to the Fresno
Division of this court based on venue considerations.
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