Thornton v. Stainer

Filing 13

ORDER (1) Construing Petition as one Filed Pursuant to 28 U.S.C. § 2254; (2) DISMISSING CASE without Prejudice and with Leave to Amend; (3) denying 9 Motion for Evidentiary Hearing as Moot; and (4) denying 12 Motion for Entry of Default as Moot: If Petitioner wishes to proceed with this case, he must submit, no later than 5/29/12, a copy of this Order along with a First Amended Petition. The Clerk of Court is directed to send Petitioner a First Amended Petition form along with a copy of this Order. Signed by Judge Janis L. Sammartino on 4/5/12.(All non-registered users served via U.S. Mail Service)(lmt)(form sent)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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WILLIAM CECIL THORNTON,

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Civil No.
Petitioner,

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ORDER:

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(1) CONSTRUING PETITION AS ONE
FILED PURSUANT TO 28 U.S.C. § 2254

v.

(2) DISMISSING CASE
WITHOUT PREJUDICE AND WITH
LEAVE TO AMEND,

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MICHEAL STAINER, Warden

(3) DENYING MOTION FOR
EVIDENTIARY HEARING AS MOOT
[ECF No. 9], and

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11-1266 JLS (PCL)

Respondent.

(4) DENYING MOTION FOR ENTRY
OF DEFAULT AS MOOT [ECF No. 12.]

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On June 8, 2011, Petitioner, a state prisoner proceeding pro se, filed a Petition for Writ

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of Habeas Corpus pursuant to 28 U.S.C. § 2241, along with a prison trust fund account

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statement. [ECF No. 1, 2]. By Order dated June 13, 2011, this Court construed Petitioner’s trust

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fund account statement as a request to proceed in forma pauperis, and granted the request. [ECF

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No. 3.] On March 1, 2012, Petitioner filed a Motion for Evidentiary Hearing, [ECF No. 9], and

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on March 22, 2012, Petitioner filed a Motion for Entry of Default. [ECF Nos. 9, 12.]

CONSTRUING ACTION AS ONE PURSUANT TO 28 U.S.C. § 2254

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Although Petitioner filed this action pursuant to 28 U.S.C. § 2241, he is a state prisoner

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attacking the validity of a state court conviction and sentence imposed by the state of California.

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Therefore, Petitioner may not proceed under section 2241, but may only proceed with a habeas

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action in federal court under 28 U.S.C. § 2254. White v. Lambert, 370 F.3d 1002, 1006-07 (9th

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Cir. 2004) (holding that section 2254 is the proper jurisdictional basis for a habeas petition

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brought by an individual “in custody pursuant to a state court judgment”). Section 2254 is

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properly understood as “in effect implement[ing] the general grant of habeas corpus authority

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found in § 2241 as long as the person is in custody pursuant to the judgment of a state court, and

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not in state custody for some other reason, such as pre-conviction custody, custody awaiting

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extradition, or other forms of custody that are possible without a conviction.” [citations omitted.]

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Id. at 1006 (quoting Walker v. O’Brien, 216 F.3d 626, 633 (7th Cir. 2000) (emphasis in

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original). “By contrast, the general grant of habeas authority in § 2241 is available for challenges

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by a state prisoner who is not in custody pursuant to a state court judgment-for example, a

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defendant in pre-trial detention or awaiting extradition. In these situations, not covered by the

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limitations in § 2254, the general grant of habeas authority provided by the Constitution and

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§ 2241 will provide jurisdiction for state prisoners' habeas claims.” Id. at 1006 (citing McNeely

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v. Blanas, 336 F.3d 822 (9th Cir.2003) (allowing a pre-trial detainee to proceed under § 2241).

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FAILURE TO STATE GROUNDS FOR RELIEF IN PETITION

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Rule 2(c) of the Rules Governing Section 2254 Cases states that the petition “shall set

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forth in summary form the facts supporting each of the grounds . . . specified [in the petition].”

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Rule 2(c), 28 U.S.C. foll. § 2254. See also Boehme v. Maxwell, 423 F.2d 1056, 1058 (9th Cir.

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1970) (trial court’s dismissal of federal habeas proceeding affirmed where petitioner made

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conclusory allegations instead of factual allegations showing that he was entitled to relief).

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Here, Petitioner has violated Rule 2(c). Although Petitioner does not fail to state generalized

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constitutional grounds for relief, he does fail to provide specific factual allegations in support

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of such grounds.

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While courts should liberally interpret pro se pleadings with leniency and understanding,

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this should not place on the reviewing court the entire onus of ferreting out grounds for relief.

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Zichko v. Idaho, 247 F.3d 1015, 1020-21 (9th Cir. 2001).

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conclusory allegations without any specific facts in support of relief.

The Court finds that the Petition contains

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The Court would have to engage in a tenuous analysis in order to attempt to identify and

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make sense of the Petition. In order to satisfy Rule 2(c), Petitioner must point to a “real

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possibility of constitutional error.” Cf. Blackledge v. Allison, 431 U.S. 63, 75 n.7 (1977)

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(internal quotation marks omitted). Facts must be stated, in the petition, with sufficient detail

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to enable the Court to determine, from the face of the petition, whether further habeas corpus

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review is warranted. Adams v. Armontrout, 897 F.2d 332, 334 (8th Cir. 1990). Moreover, the

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allegations should be sufficiently specific to permit the respondent to assert appropriate

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objections and defenses. Harris v. Allen, 739 F. Supp. 564, 565 (W.D. Okla. 1989). Here, the

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lack of grounds for relief in the Petition prevents the Respondent from being able to assert

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appropriate objections and defenses.

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Due to Petitioner’s unsatisfactory showing, the Court dismisses the action without

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prejudice. Should Petitioner decide to file a new petition, he is advised to clearly and succinctly

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state all grounds for relief using the First Amended Petition form sent to Petitioner with this

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order.

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FAILURE TO ALLEGE EXHAUSTION OF STATE JUDICIAL REMEDIES

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Further, habeas petitioners who wish to challenge either their state court conviction or the

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length of their confinement in state prison, must first exhaust state judicial remedies. 28 U.S.C.

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§ 2254(b), (c); Granberry v. Greer, 481 U.S. 129, 133-34 (1987). To exhaust state judicial

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remedies, a California state prisoner must present the California Supreme Court with a fair

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opportunity to rule on the merits of every issue raised in his or her federal habeas petition. 28

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

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

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

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“If state courts are to be given the opportunity to correct alleged violations of prisoners’ federal

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rights, they must surely be alerted to the fact that the prisoners are asserting claims under the

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United States Constitution.” Id. at 365-66 (emphasis added). For example, “[i]f a habeas

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petitioner wishes to claim that an evidentiary ruling at a state court trial denied him [or her] the

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due process of law guaranteed by the Fourteenth Amendment, he [or she] must say so, not only

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in federal court, but in state court.” Id. at 366 (emphasis added).

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Nowhere on the Petition does Petitioner allege that he raised his claims in the California

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Supreme Court. If Petitioner has raised his claims in the California Supreme Court he must so

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specify. “The burden of proving that a claim has been exhausted lies with the petitioner.”

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Matthews v. Evatt, 105 F.3d 907, 911 (4th Cir. 1997); see Breard v. Pruett, 134 F.3d 615, 619

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(4th Cir. 1998); Lambert v. Blackwell, 134 F.3d 506, 513 (3d Cir. 1997); Oyler v. Allenbrand,

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23 F.3d 292, 300 (10th Cir. 1994); Rust v. Zent, 17 F.3d 155, 160 (6th Cir. 1994).

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Further, the Court cautions Petitioner that under the Antiterrorism and Effective Death

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Penalty Act of 1996 (AEDPA) a one-year period of limitation shall apply to a petition for a writ

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of habeas corpus by a person in custody pursuant to the judgment of a State court. The

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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.A. § 2244(d)(1)(A)-(D) (West Supp. 2002).

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The statute of limitations does not run while a properly filed state habeas corpus petition

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is pending. 28 U.S.C. § 2244(d)(2); see Nino v. Galaza, 183 F.3d 1003, 1006 (9th Cir. 1999).

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But see Artuz v. Bennett, 531 U.S. 4, 8 (2000) (holding that “an application is ‘properly filed’

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when its delivery and acceptance [by the appropriate court officer for placement into the record]

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are in compliance with the applicable laws and rules governing filings.”). However, absent some

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other basis for tolling, the statute of limitations does run while a federal habeas petition is

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pending. Duncan v. Walker, 533 U.S. 167, 181-82 (2001).

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Rule 4 of the Rules Governing Section 2254 Cases provides for summary dismissal of a

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habeas petition “[i]f it plainly appears from the face of the petition and any exhibits annexed to

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it that the petitioner is not entitled to relief in the district court . . .” Rule 4, 28 U.S.C. foll.

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§ 2254. Here, it appears plain from the Petition that Petitioner is not presently entitled to federal

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habeas relief because he has not alleged exhaustion of state court remedies.
CONCLUSION AND ORDER

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Based on the foregoing, the Court CONSTRUES this action as one filed pursuant to 28

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U.S.C. § 2254, and DISMISSES the petition without prejudice and with leave to amend for

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Petitioner’s failure to state grounds for relief in the petition, and allege exhaustion of state court

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remedies. Further, the Court DENIES Petitioner’s request for an evidentiary hearing as moot,

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and DENIES Petitioner’s request for entry of default as moot. If Petitioner wishes to proceed

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with this case, he must submit, no later than May 29, 2012, a copy of this Order along with a

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First Amended Petition which cures the pleading deficiencies noted above. The Clerk of Court

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is directed to send Petitioner a First Amended Petition form along with a copy of this Order.

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IT IS SO ORDERED.

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DATED: April 5, 2012
Honorable Janis L. Sammartino
United States District Judge