Nunez Munoz v. Imperial County Jail et al

Filing 2

ORDER DISMISSING CASE WITHOUT PREJUDICE: Because this Court cannot proceed until Petitioner has either paid the $5.00 filing fee or qualified to proceed in forma pauperis, the Court dismisses the case without prejudice. If Petitioner wishes to p roceed with this case, he must submit, by 7/5/2011: (1) the $5.00 filing fee OR submit adequate proof of his inability to pay the fee; AND (2) file a First Amended Petition that cures the pleading deficiencies outlined in this Order. Signed by Judge Marilyn L. Huff on 4/28/11. (Sent copy of Order, blank IFP, and blank Petition to Petitioner) (All non-registered users served via U.S. Mail Service)(rlu)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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VICTOR NUNEZ MUNOZ,

Civil No.

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Petitioner,

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ORDER DISMISSING CASE
WITHOUT PREJUDICE AND WITH
LEAVE TO AMEND

v.
IMPERIAL COUNTY JAIL, et al.,
Respondents.

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Petitioner, a state prisoner proceeding pro se, has filed a Petition for Writ of Habeas

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11-0888 H (NLS)

Corpus pursuant to 28 U.S.C. § 2254.
FAILURE TO SATISFY FILING FEE REQUIREMENT

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Petitioner has failed to pay the $5.00 filing fee and has failed to move to proceed in forma

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pauperis. This Court cannot proceed until Petitioner has either paid the $5.00 filing fee or

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qualified to proceed in forma pauperis. See Rule 3(a), 28 U.S.C. foll. § 2254.
FAILURE TO NAME PROPER RESPONDENT

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Review of the Petition reveals that Petitioner has failed to name a proper respondent. On

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federal habeas, a state prisoner must name the state officer having custody of him as the

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respondent. Ortiz-Sandoval v. Gomez, 81 F.3d 891, 894 (9th Cir. 1996) (citing Rule 2(a), 28

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U.S.C. foll. § 2254). Federal courts lack personal jurisdiction when a habeas petition fails to

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name a proper respondent. See id.

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“[T]he ‘state officer having custody’ [is] ‘. . . the warden of the institution in which the

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petitioner is incarcerated . . . .’” Id. (quoting Rule 2(a), 28 U.S.C. foll. § 2254 advisory

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committee’s note). If “a petitioner is in custody due to the state action he is challenging, ‘[t]he

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named respondent shall be the state officer who has official custody of the petitioner . . . ..’” Id.

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(quoting Rule 2, 28 U.S.C. foll. § 2254 advisory committee’s note). A long standing rule in the

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Ninth Circuit holds “that a petitioner may not seek [a writ of] habeas corpus against the State

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under . . . [whose] authority . . . the petitioner is in custody. The actual person who is [the]

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custodian [of the petitioner] must be the respondent.” Ashley v. Washington, 394 F.2d 125, 126

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(9th Cir. 1968). This requirement exists because a writ of habeas corpus acts upon the custodian

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of the state prisoner, the person who will produce “the body” if directed to do so by the Court.

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“Both the warden of a California prison and the Director of Corrections for California have the

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power to produce the prisoner.” Ortiz-Sandoval, 81 F.3d at 895.

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Here, Petitioner has incorrectly named “Imperial County Jail, The People, Mrs. Clayton,

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Mr. Pamphrey, Mr. R. Ortega, Mr. Garcia, etc.,” as Respondent. In order for this Court to

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entertain the Petition filed in this action, Petitioner must name the warden in charge of the

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correctional facility in which Petitioner is presently confined. Brittingham v. United States, 982

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F.2d 378, 379 (9th Cir. 1992) (per curiam).

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FAILURE TO STATE A COGNIZABLE FEDERAL CLAIM

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Additionally, in accordance with Rule 4 of the rules governing § 2254 cases, Petitioner

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has failed to allege that his state court conviction or sentence violates the Constitution of the

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United States.

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Title 28, United States Code, § 2254(a), sets forth the following scope of review for
federal habeas corpus claims:

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The Supreme Court, a Justice thereof, a circuit judge, or a district
court shall entertain an application for a writ of habeas corpus in
behalf of a person in custody pursuant to the judgment of a State
court only on the ground that he is in custody in violation of the
Constitution or laws or treaties of the United States.

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28 U.S.C. § 2254(a) (emphasis added). See Hernandez v. Ylst, 930 F.2d 714, 719 (9th Cir.

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1991); Mannhalt v. Reed, 847 F.2d 576, 579 (9th Cir. 1988); Kealohapauole v. Shimoda, 800

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F.2d 1463, 1464-65 (9th Cir. 1986). Thus, to present a cognizable federal habeas corpus claim

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under § 2254, a state prisoner must allege both that he is in custody pursuant to a “judgment of

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a State court,” and that he is in custody in “violation of the Constitution or laws or treaties of the

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United States.” See 28 U.S.C. § 2254(a).

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Here, Petitioner states the following as claim one,“Health and safety welfare, corrections

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Imperial County California Jail, medical documents and record supporting. Went to Chino State

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Prison and back to county jail Imperial Valley Corrections, the law of United States of

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America.” (ECF No. 1 at 8.) As to claim two, he states: “Case, warrant, release, inmate custody.

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They came to my cell and got all my stuff now I send you this copies it up to you to help me.”

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(Id. at 7.) As to claim three, he states: “Rules and regulation, admissions procedure, leaving

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quarters, documents and papers.” (Id. at 6.) As to claim four, he states: “Staff, hold, parole,

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petty thief, possession of drugs wee in jail, narcotic testing, the people, judge and lawyer. On

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record, I want to see how they did that we got rights by law of the Petitioner, Victor Nunez

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Munoz, etc. location.” (Id. at 9.) In no way does Petitioner claim he is “in custody in violation

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of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254.

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Further, the Court notes that Petitioner cannot simply amend his Petition to state a federal

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habeas claim and then refile the amended petition in this case. He must exhaust state judicial

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remedies before bringing his claims via federal habeas. State prisoners who wish to challenge

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their state court conviction must first exhaust state judicial remedies. 28 U.S.C. § 2254(b), (c);

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Granberry v. Greer, 481 U.S. 129, 133-34 (1987). To exhaust state judicial remedies, a

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California state prisoner must present the California Supreme Court with a fair opportunity to

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rule on the merits of every issue raised in his or her federal habeas petition. See 28 U.S.C.

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§ 2254(b), (c); Granberry, 481 U.S. at 133-34. Moreover, to properly exhaust state court

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judicial remedies a petitioner must allege, in state court, how one or more of his or her federal

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rights have been violated. The Supreme Court in Duncan v. Henry, 513 U.S. 364 (1995)

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reasoned: “If state courts are to be given the opportunity to correct alleged violations of

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prisoners’ federal rights, they must surely be alerted to the fact that the prisoners are asserting

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claims under the United States Constitution.” Id. at 365-66 (emphasis added). For example,

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“[i]f a habeas petitioner wishes to claim that an evidentiary ruling at a state court trial denied him

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the due process of law guaranteed by the Fourteenth Amendment, he must say so, not only in

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federal court, but in state court.” Id. (emphasis added).

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Additionally, the Court cautions Petitioner that under the Antiterrorism and Effective

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Death Penalty Act of 1996 (Act), signed into law on April 24, 1996, a one-year period of

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limitation shall apply to a petition for a writ of habeas corpus by a person in custody pursuant

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to the judgment of a State court. The limitation period shall run from the latest of:

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(A) the date on which the judgment became final by the
conclusion of direct review or the expiration of the time for seeking
such review;
(B) the date on which the impediment to filing an application
created by State action in violation of the Constitution or laws of the
United States is removed, if the applicant was prevented from filing
by such State action;

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(C) the date on which the constitutional right asserted was
initially recognized by the Supreme Court, if the right has been
newly recognized by the Supreme Court and made retroactively
applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or
claims presented could have been discovered through the exercise
of due diligence.
28 U.S.C. § 2244(d)(1)(A)-(D) (West Supp. 2002).

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The Court also notes that the statute of limitations does not run while a properly filed state

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habeas corpus petition is pending. 28 U.S.C. § 2244(d)(2); see Nino v. Galaza, 183 F.3d 1003,

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1006 (9th Cir. 1999), cert. denied, 529 U.S. 1104 (2000). But see Artuz v. Bennett, 531 U.S. 4,

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8 (2000) (holding that “an application is ‘properly filed’ when its delivery and acceptance [by

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the appropriate court officer for placement into the record] are in compliance with the applicable

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laws and rules governing filings.”). However, absent some other basis for tolling, the statute of

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limitations does run while a federal habeas petition is pending. Duncan v. Walker, 533 U.S. 167,

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181-82 (2001).

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Petitioner’s allegations suggest he may be seeking to challenge the conditions of his

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confinement rather than the validity of his state court conviction. Such challenges are brought

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pursuant to the Civil Rights Act, 42 U.S.C. § 1983. See Preiser v. Rodriguez, 411 U.S. 475,

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488-500 (1973). When a state prisoner is challenging the very fact or duration of his physical

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imprisonment, and the relief he seeks is a determination that he is entitled to immediate release

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or a speedier release from that imprisonment, his sole federal remedy is a writ of habeas corpus.

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Id. at 500. On the other hand, a § 1983 action is a proper remedy for a state prisoner who is

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making a constitutional challenge to the conditions of his prison life, but not to the fact or length

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of his custody. Id. at 499; McIntosh v. United States Parole Comm’n, 115 F.3d 809, 811-12

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(10th Cir. 1997). It appears that Petitioner may be seeking to challenge the conditions of his

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prison life, but not the fact or length of his custody. Thus, Petitioner has not stated a cognizable

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habeas claim pursuant to § 2254.
CONCLUSION

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For all the foregoing reasons, the Court DISMISSES the Petition without prejudice and

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with leave to amend. To have this case reopened as a 28 U.S.C. § 2254 habeas corpus petition,

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Petitioner must, no later than July 5, 2011: (1) pay the $5.00 filing fee OR submit adequate

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proof of his inability to pay the fee; AND (2) file a First Amended Petition that cures the

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pleading deficiencies outlined in this Order.

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If Petitioner does not seek to challenge the validity of his state court conviction or the

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duration of his confinement but rather seeks to challenge the conditions of his confinement, he

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must file a new civil rights complaint pursuant to 42 U.S.C. § 1983 which will be given a new

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case number. The Clerk of Court is directed to mail Petitioner a blank Motion to Proceed in

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Forma Pauperis form, a blank First Amended Petition form, and a blank Civil Rights

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Complaint Pursuant to 42 U.S.C. § 1983 form together with a copy of this Order.

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IT IS SO ORDERED.
Dated: April 28, 2011
________________________________
MARILYN L. HUFF, District Judge
UNITED STATES DISTRICT COURT

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