Weir v. Attorney General of the State of Florida

Filing 3

ORDER (1) Granting 2 Motion For Leave to Proceed In Forma Pauperis; and (2) Dismissing Case Without Prejudice and With Leave to Amend. First Amended Petition due 4/19/2013. Signed by Judge Gonzalo P. Curiel on 2/13/2013. Petitioner mailed blank First Amended Petition form. (All non-registered users served via U.S. Mail Service)(srm)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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ZACHARY L. WEIR,

Civil No.

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Petitioner,
ORDER:

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v.

(1) GRANTING APPLICATION TO
PROCEED IN FORMA PAUPERIS; and

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ATTORNEY GENERAL OF THE STATE OF
FLORIDA,
Respondent.

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

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Petitioner, a state prisoner proceeding pro se, has submitted a Petition for Writ of Habeas
Corpus pursuant to 28 U.S.C. § 2254, together with a request to proceed in forma pauperis.

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MOTION TO PROCEED IN FORMA PAUPERIS

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Petitioner has $0.98 on account at the California correctional institution in which he is

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presently confined. Petitioner cannot afford the $5.00 filing fee. Thus, the Court GRANTS

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Petitioner’s application to proceed in forma pauperis, and allows Petitioner to prosecute the

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above-referenced action as a poor person without being required to prepay fees or costs and

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without being required to post security. The Clerk of the Court shall file the Petition for Writ

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of Habeas Corpus without prepayment of the filing fee.

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VENUE

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A petition for writ of habeas corpus may be filed in the United States District Court of

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either the judicial district in which the petitioner is presently confined or the judicial district in

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which he was convicted and sentenced. See 28 U.S.C. § 2241(d); Braden v. 30th Judicial

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Circuit Court, 410 U.S. 484, 497 (1973). Petitioner is presently confined at George Baily

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Detention Facility, located in San Diego County, which is within the jurisdictional boundaries

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of the United States District Court for the Southern District of California. See 28 U.S.C. § 84(d).

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However, it is not clear from the petition whether Petitioner seeks to challenge a state court

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conviction from Florida, or whether he seeks to challenge the use of the Florida conviction as

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an enhancement of state court conviction from San Diego County. Nor is it clear whether

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Petitioner is currently in custody pursuant to a conviction from a San Diego County court.

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Accordingly, the Court cannot determine from the petition whether jurisdiction exists in the

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United States District Court for the Southern District of California.

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If Petitioner wishes to challenge the validity of his Florida conviction, the Court advises

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him he must file his habeas corpus action in the United States District Court for the Southern

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District of Florida. See 28 U.S.C. § 89(c). If Petitioner wishes to challenge a state court

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conviction from San Diego County, he must file a First Amended Petition that clearly sets forth

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the conviction he is challenging and the grounds upon which he is challenging it.

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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:
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 claims that “the trial court failed [to] abide by the proper procedures

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pursuant to Penal Code [section] 1368,” “violations of various civil rights of the Appellant,”

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“petition for release on recognizance (bail review),” and “irrelevance of the charged

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complaints.” (Pet. at 3.) In no way does Petitioner claim he is “in custody in violation of the

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

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FAILURE TO NAME PROPER RESPONDENT

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

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On 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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The warden is the typical respondent. However, “the rules following section 2254 do not

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specify the warden.” Id. “[T]he ‘state officer having custody’ may be ‘either the warden of the

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institution in which the petitioner is incarcerated . . . or the chief officer in charge of state penal

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institutions.’” Id. (quoting Rule 2(a), 28 U.S.C. foll. § 2254 advisory committee’s note). If “a

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petitioner is in custody due to the state action he is challenging, ‘[t]he named respondent shall

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be the state officer who has official custody of the petitioner (for example, the warden of the

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prison).’” Id. (quoting Rule 2, 28 U.S.C. foll. § 2254 advisory committee’s note).

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A long standing rule in the Ninth Circuit holds “that a petitioner may not seek [a writ of]

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habeas corpus against the State under . . . [whose] authority . . . the petitioner is in custody. The

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actual person who is [the] custodian [of the petitioner] must be the respondent.” Ashley v.

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Washington, 394 F.2d 125, 126 (9th Cir. 1968). This requirement exists because a writ of

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habeas corpus acts upon the custodian of the state prisoner, the person who will produce “the

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body” if directed to do so by the Court. In California, “[b]oth the warden of a California prison

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and the Director of Corrections for California have the power to produce the prisoner.” Ortiz-

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Sandoval, 81 F.3d at 895.

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Here, Petitioner has incorrectly named “The Attorney General of Florida,” as Respondent.

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In order for this Court to entertain the Petition filed in this action, Petitioner must name the

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warden in charge of the state correctional facility in which Petitioner is presently confined or the

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Director of the California Department of Corrections and Rehabilitation. Brittingham v. United

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States, 982 F.2d 378, 379 (9th Cir. 1992) (per curiam).

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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). Ordinarily, to satisfy the

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exhaustion requirement, a petitioner must “‘fairly present[]’ his federal claim to the highest state

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court with jurisdiction to consider it, or . . . demonstrate[] that no state remedy remains

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available.” Johnson v. Zenon, 88 F.3d 828, 829 (9th Cir. 1996) (citations omitted). Moreover,

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to properly exhaust state court remedies a petitioner must allege, in state court, how one or more

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of his or her federal rights have been violated. For example, “[i]f a habeas petitioner wishes to

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claim that an evidentiary ruling at a state court trial denied him [or her] the due process of law

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guaranteed by the Fourteenth Amendment, he [or she] must say so, not only in federal court, but

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in state court.” See Duncan v. Henry, 513 U.S. 364, 365-66 (1995)(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.

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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 limitation

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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;

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(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

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(D) the date on which the factual predicate of the claim or claims presented
could have been discovered through the exercise of due diligence.

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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

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For all the foregoing reasons, the Court GRANTS Petitioner’s motion to proceed in

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forma pauperis and DISMISSES this action without prejudice and with leave to amend. To

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have this case reopened, Petitioner must, no later than April 19, 2013, file a First Amended

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Petition that cures the pleading deficiencies set forth above.1 The Clerk of Court is directed to

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mail Petitioner a blank First Amended Petition form together with a copy of this Order.

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IT IS SO ORDERED.
DATED: February 13, 2013

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HON. GONZALO P. CURIEL
United States District Judge

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A blank First Amended Petition is included with this Order for Petitioner’s convenience.

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