Jiminez v. People of the State of California et al

Filing 2

ORDER DISMISSING CASE without Prejudice and with Leave to Amend. A First Amended Petition Form, Complaint pursuant to42 U.S.C. § 1983 form, and a motion to proceed IFP form was mailed to petitioner. Signed by Judge Marilyn L. Huff on 09/10/07. (agp)

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Jiminez v. People of the State of California et al Doc. 2 Case 3:07-cv-01756-H-CAB Document 2 Filed 09/11/2007 Page 1 of 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 P etitio n er, a state prisoner proceeding pro se, has filed a Petition for Writ of Habeas Co rpu s pursuant to 28 U.S.C. § 2254.. FAILURE TO SATISFY FILING FEE REQUIREMENT P e t i ti o n e r has failed to pay the $5.00 filing fee and has failed to move to proceed in forma p a u p e r i s . This Court cannot proceed until Petitioner has either paid the $5.00 filing fee or qua lified to proceed in forma pauperis. See Rule 3(a), 28 U.S.C. foll. § 2254. FAILURE TO ALLEGE EXHAUSTION F u rth er, habeas petitioners who wish to challenge either their state court conviction or the length of their confinement in state prison, must first exhaust state judicial remedies. 28 U.S.C. § 2254(b), (c); Granberry v. Greer, 481 U.S. 129, 133-34 (1987). To exhaust state judicial r e m e d i e s , a California state prisoner must present the California Supreme Court with a fair o p p o r t u n it y to rule on the merits of every issue raised in his or her federal habeas petition. 28 v. TINA HORNBECK, et al., Respondents. DEBBIE JIMINEZ, Petitioner, ORDER DISMISSING CASE WITHOUT PREJUDICE AND WITH LEAVE TO AMEND Civil No. 07-1756 H (CAB) UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA -1Dockets.Justia.com Case 3:07-cv-01756-H-CAB Document 2 Filed 09/11/2007 Page 2 of 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 U . S. C . § 2254(b), (c); Granberry, 481 U.S. at 133-34. Moreover, to properly exhaust state court r e m e d i e s a petitioner must allege, in state court, how one or more of his or her federal rights h a v e been violated. For example, "[i]f a habeas petitioner wishes to claim that an evidentiary r u l in g at a state court trial denied him [or her] the due process of law guaranteed by the Fou rteenth Amendment, he [or she] must say so, not only in federal court, but in state court." I d . at 366 (emphasis added). P e t i ti o n e r does not allege that she raised her claims in the California Supreme Court. In fact, she specifically indicates she did not seek review in the California Supreme Court. (See Pet. at 5.) If Petitioner has raised her claims in the California Supreme Court she must so spe cify. Further, the Court cautions Petitioner that under the Antiterrorism and Effective Death Pen alty Act of 1996 (AEDPA) a one-year period of limitation shall apply to a petition for a writ o f habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation p e r i o d shall run from the latest of: ( A ) the date on which the judgment became final by the c o n c l u s io n of direct review or the expiration of the time for seeking s uc h review; ( B ) the date on which the impediment to filing an application c r e a te d by State action in violation of the Constitution or laws of the U n i t e d States is removed, if the applicant was prevented from filing b y such State action; ( C ) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been new ly recognized by the Supreme Court and made retroactively a p p l i ca b l e to cases on collateral review; or ( D ) the date on which the factual predicate of the claim or c l a im s presented could have been discovered through the exercise o f due diligence. 28 U.S.C.A. § 2244(d)(1)(A)-(D) (West Supp. 2002). T h e statute of limitations does not run while a properly filed state habeas corpus petition i s pending. 28 U.S.C. § 2244(d)(2); see Nino v. Galaza, 183 F.3d 1003, 1006 (9th Cir. 1999). B u t see Artuz v. Bennett, 531 U.S. 4, 8 (2000) (holding that "an application is `properly filed' w h e n its delivery and acceptance [by the appropriate court officer for placement into the record] -2- Case 3:07-cv-01756-H-CAB Document 2 Filed 09/11/2007 Page 3 of 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 are in compliance with the applicable laws and rules governing filings."). However, absent some o t h e r basis for tolling, the statute of limitations does run while a federal habeas petition is pen din g. Duncan v. Walker, 533 U.S. 167, 181-82 (2001). F A IL U R E TO STATE A COGNIZABLE CLAIM ON HABEAS CORPUS Mo reo v er, Petitioner is advised that a Petition for Writ of Habeas Corpus brought p u r s u a n t to § 2254 is not the proper vehicle for some of the claims she presents. Petitioner c la im s she was denied access to the courts, proper medical care, illegal confinement, hazardous h o u s i n g , improper security, mental anguish, false arrest and imprisonment, and illegal seizure o f assets. (Pet. at 6-9.) These claims are not cognizable on habeas because they do not c h a l l en g e the constitutional validity or duration of Petitioner's confinement. See 28 U.S.C. 2254( a ); Preiser v. Rodriguez, 411 U.S. 475, 500 (1973); Heck v. Humphrey, 512 U.S. 477, 48085 (1994). Challenges to the fact or duration of confinement are brought by petition for a writ of h a b e a s corpus, pursuant to 28 U.S.C. § 2254; challenges to conditions of confinement are b r o u g h t pursuant to the Civil Rights Act, 42 U.S.C. § 1983. See Preiser, 411 U.S. at 488-500. W h e n a state prisoner is challenging the very fact or duration of her physical imprisonment, and t h e relief she seeks is a determination that she is entitled to immediate release or a speedier r e l e a s e from that imprisonment, her sole federal remedy is a writ of habeas corpus. Id. at 500. O n the other hand, a § 1983 action is a proper remedy for a state prisoner who is making a c o n s t it u t io n a l challenge to the conditions of her prison life, but not to the fact or length of her cu sto dy. Id. at 499; McIntosh v. United States Parole Comm'n, 115 F.3d 809, 811-12 (10th Cir. 199 7). CONCLUSION F o r the foregoing reasons, the petition is DISMISSED without prejudice and with leave to amend. If Petitioner wishes to proceed with this case, she must submit, no later than N o v e m b e r 2, 2007: (1) a copy of this Order with the $5.00 fee or with adequate proof of her inability to pay the fee, AND (2) a First Amended Petition which cures the pleading deficiencies o u t l in e d in this Order. THE CLERK OF COURT IS DIRECTED TO MAIL PETITIONER A -3- Case 3:07-cv-01756-H-CAB Document 2 Filed 09/11/2007 Page 4 of 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 B L A N K FIRST AMENDED PETITION FORM, A BLANK COMPLAINT PURSUANT TO 4 2 U.S.C. § 1983 FORM, AND A BLANK MOTION TO PROCEED IN FORM A PAUPERIS. I T IS SO ORDERED. D A T E D : September 10, 2007 M A R I L Y N L. HUFF, District Judge U N I T ED STATES DISTRICT COURT C O P IE S TO: A l l parties of record. -4-

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