Contreras v. Department of Homeland Security et al

Filing 2

ORDER DISMISSING CASE Without Prejudice: The Court denies Petitioner's request for a stay of deportation and dismisses this action without prejudice because Petitioner has failed to satisfy the filing fee requirement and has failed to allege a b asis for habeas jurisdiction. To have this case reopened, Petitioner must satisfy the filing fee requirement and file a First Amended Petition no later than 10/23/07. The dismissal of the Petition is also without prejudice to Petitioner to file a sep arate civil rights complaint, if he wishes, pursuant to 42 U.S.C. Section 1983. Petitioner's motion for appointment of counsel is denied without prejudice. The Clerk of the Court shall send Petitioner a blank in forma pauperis application along with a copy of this Order. Signed by Judge William Q. Hayes on 7/31/07. (Copy of this Order and a blank IFP form mailed to Petitioner.) (mdc)(bar ).

Contreras v. Department of Homeland Security et al

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Case 3:07-cv-01303-WQH-RBB

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 HAYES, Judge: 20 Petitioner, a person incarcerated at Calipatria State Prison and proceeding pro se, has filed 21 a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 and § 2241. Petitioner 22 contends that he is being subjected to violations of his federal Constitutional rights as a result 23 of an immigration hold issued by the Department of Homeland Security because he does not 24 have adequate access to a law library and is housed at a Level IV prison rather than a Level II 25 prison where he would be housed but for the immigration hold. (Pet. at 3-7.) Petitioner requests 26 a stay of deportation, appointment of counsel, and requests that the Court "allow amendment of 27 the Petition when on July 3, 2007 Petitioner will be transferred to some unknown INS facility." 28 (Id. at 4, 7.) v. DEPARTMENT OF HOMELAND SECURITY, et al., Respondents. JOSE CONTRERAS, Petitioner, Civil No. 07cv1303 WQH (RBB) UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

ORDER DISMISSING CASE WITHOUT PREJUDICE

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FAILURE TO SATISFY FILING FEE REQUIREMENT Petitioner has neither paid the filing fee nor submitted an application to proceed in forma

3 pauperis. Because this Court cannot proceed until Petitioner has either paid the $5.00 filing fee 4 or qualified to proceed in forma pauperis, the Court DISMISSES the case without prejudice. 5 See Rule 3(a), 28 U.S.C. foll. § 2254. If Petitioner wishes to proceed with this case, he must 6 submit, no later than October 23, 2007, a copy of this Order with the $5.00 fee or with 7 adequate proof of his inability to pay the fee. (A blank motion to proceed in forma pauperis 8 form is included with this Order for Petitioner's convenience.) 9 10 HABEAS CORPUS JURISDICTION Petitioner fails to allege whether he is currently in custody pursuant to the judgment of

11 a state court or in the custody of the Department of Homeland Security. It also is unclear from 12 the face of the Petition whether Petitioner intends to proceed in this action with a habeas petition 13 or seeks to bring a civil rights action pursuant to 42 U.S.C. § 1983. 14 The allegations in the Petition relate to the conditions of confinement at Calipatria State

15 Prison. Petitioner fails to allege that the interference with his law library access or the "harsh" 16 conditions of his confinement is affecting, or has affected, the duration of his custody. If 17 Petitioner seeks to invoke this Court's jurisdiction under 28 U.S.C. § 2254, he must allege that 18 he is in custody pursuant to a state court judgment and that he intends to challenge the 19 constitutional validity or duration of present confinement. See 28 U.S.C. § 2254(a); Preiser v. 20 Rodriguez, 411 U.S. 475, 488-500 (1973). If Petitioner seeks to invoke this Court's jurisdiction 21 pursuant to 28 U.S.C. § 2241, he must allege that he is in custody in violation of the Constitution 22 or laws or treaties of the United States and that he is a federal prisoner or "a state prisoner who 23 is not in custody pursuant to a state court judgment­for example, a defendant in pre-trial 24 detention or awaiting extradition." White v. Lambert, 370 F.3d 1002, 1006 (9th Cir. 2004). If 25 Petitioner is presenting a challenge to the conditions of his confinement at Calipatria State Prison 26 and is not seeking immediate or speedier release, he must file a separate civil rights complaint 27 pursuant to 42 U.S.C. § 1983 if he seeks to pursue such claims. See generally Badea v. Cox, 931 28 F.2d 573, 574 (9th Cir. 1991) ("Habeas corpus proceedings are the proper mechanism for a

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1 prisoner to challenge the `legality or duration' of confinement. A civil rights action, in contrast, 2 is the proper method of challenging `conditions of . . . confinement.'") (quoting Preiser, 411 3 U.S. at 484, 498-99). 4 Additionally, if Petitioner seeks to bring a habeas petition, he must name the proper

5 respondent. Under § 2254, a state prisoner must name the state officer having custody of him 6 as the respondent. See Ortiz-Sandoval v. Gomez, 81 F.3d 891, 894 (9th Cir. 1996) (citing Rule 7 2(a), 28 U.S.C. foll. § 2254). "Typically, that person is the warden of the facility in which the 8 petitioner is incarcerated." Id. Federal courts lack personal jurisdiction when a habeas petition 9 fails to name a proper respondent. See id. Similarly, under 28 U.S.C. § 2242, the proper 10 respondent in a § 2241 petition is the custodian of the institution where the federal prisoner is 11 incarcerated. The Supreme Court reaffirmed this "immediate-custodian" rule when it stated that 12 "whenever a § 2241 habeas petitioner seeks to challenge his present physical custody within the 13 United States, he should name his warden as respondent. . . ." Rumsfeld v. Padilla, 542 U.S. 14 426, 447 (2004). 15 16 STAY OF DEPORTATION A motion for stay pending a district court's review of a petition for writ of habeas corpus

17 on the merits is reviewed under the same standards used to evaluate motions for preliminary 18 injunctive relief. See Andreiu v. Ashcroft, 253 F.3d 477, 480 (9th Cir. 2001). The petitioner 19 must show "either a probability of success on the merits and the possibility of irreparable injury, 20 or that serious legal questions are raised and the balance of hardships tips sharply in petitioner's 21 favor." Id. (quoting Abbassi v. I.N.S., 143 F.3d 513, 514 (9th Cir. 1998)). "`These standards 22 represent the outer extremes of a continuum, with the relative hardships to the parties providing 23 the critical element in determining at what point on the continuum a stay pending review is 24 justified.'" Andreiu, 253 F.3d at 483 (quoting Abbassi, 143 F.3d at 514). However, if the 25 applicant shows no chance of success on the merits, the injunction should not issue. See 26 Arcamuzi v. Continental Airlines, Inc., 819 F.2d 935, 937 (9th Cir. 1987). 27 The Petition, as presently framed, is insufficient to be considered as a habeas corpus

28 petition and therefore shows no chance of success on the merits. In the event Petitioner seeks

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1 to file a petition for writ of habeas corpus challenging a final order of deportation or removal, 2 the district court would lack jurisdiction to consider the petition because the entire habeas corpus 3 proceeding would then be within the sole and exclusive jurisdiction of the Ninth Circuit Court 4 of Appeals, including any emergency motion for a temporary stay of deportation or removal. 5 See 8 U.S.C. § 1252 ; see also Alvarez-Barajas v. Gonzales, 418 F.3d 1050, 1052 (9th Cir. 6 2005). "[T]he [REAL ID] Act makes circuit courts the `sole' judicial body able to review 7 challenges to final orders of deportation, exclusion, or removal." Alvarez-Barajas, 418 F.3d at 8 1052 (citing REAL ID Act § 106(a)). The Act eliminated habeas jurisdiction over final orders 9 of deportation, exclusion or removal. See id. The jurisdictional provisions of the REAL ID Act 10 were effective May 11, 2005, and apply to any "final administrative order of removal, 11 deportation, exclusion" that was "issued before, on, or after the date of enactment." REAL ID 12 Act § 106(b). 13 14 15 Therefore, the request for stay of deportation is denied without prejudice. APPOINTMENT OF COUNSEL There currently exists no right to the appointment of counsel in habeas proceedings. See,

16 e.g., Anderson v. Heinze, 258 F.2d 479, 481 (9th Cir. 1958); Mitchell v. Wyrick, 727 F.2d 773 17 (8th Cir. 1984). Although 18 U.S.C. § 3006A authorizes the appointment of counsel at any stage 18 of the case "if the interests of justice so require," see 18 U.S.C. § 3006A(a)(2)(B), the Court has 19 determined that the interests of justice do not require the assistance of counsel at this stage in the 20 proceedings. Should the Court later find otherwise, it can issue an order of appointment sua 21 sponte or by renewed motion. To date, however, Petitioner has not filed a habeas petition 22 invoking the jurisdiction of this Court; therefore, the Court finds that no such appointment of 23 counsel is warranted at this time. 24 25 CONCLUSION Based on the foregoing, the Court DENIES Petitioner's request for a stay of deportation

26 and DISMISSES this action without prejudice because Petitioner has failed to satisfy the filing 27 fee requirement and has failed to allege a basis for habeas jurisdiction. To have this case 28 reopened, Petitioner must satisfy the filing fee requirement and file a First Amended Petition no

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1 later than October 23, 2007, that cures the pleading deficiencies set forth above. The dismissal 2 of the Petition is also without prejudice to Petitioner to file a separate civil rights complaint, if 3 he wishes, pursuant to 42 U.S.C. § 1983. Petitioner's motion for appointment of counsel is 4 DENIED without prejudice. The Clerk of the Court shall send Petitioner a blank in forma 5 pauperis application along with a copy of this Order. 6 DATED: July 31, 2007 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 WILLIAM Q. HAYES United States District Judge

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