Downs v. Beard et al

Filing 2

ORDER DISMISSING CASE Without Prejudice. The Court dismisses this case without prejudice for failure to satisfy the filing fee requirement, failure to allege exhaustion and failure to state a cognizable claim on habeas corpus. Signed by Judge Gonzalo P. Curiel on 4/16/15.(All non-registered users served via U.S. Mail Service)(dlg)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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GREGORY DOWNS, III,

Civil No.

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Petitioner,

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v.
JEFFREY BEARD, Secretary
Respondent.

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15-0727 GPC (WVG)

ORDER DISMISSING CASE
WITHOUT PREJUDICE

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

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in forma pauperis. Because this Court cannot proceed until Petitioner has either paid the

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$5.00 filing fee or qualified to proceed in forma pauperis, the Court DISMISSES the

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case without prejudice. See Rule 3(a), 28 U.S.C. foll. § 2254.

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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

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conviction or the length of their confinement in state prison, must first exhaust state

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judicial remedies. 28 U.S.C. § 2254(b), (c); Granberry v. Greer, 481 U.S. 129, 133-34

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(1987). To exhaust state judicial remedies, a California state prisoner must present the

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California Supreme Court with a fair opportunity to rule on the merits of every issue

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raised in his or her federal habeas petition. 28 U.S.C. § 2254(b), (c); Granberry, 481

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U.S. at 133-34. Moreover, to properly exhaust state court remedies a petitioner must

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allege, in state court, how one or more of his or her federal rights have been violated.

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The Supreme Court in Duncan v. Henry, 513 U.S. 364 (1995) reasoned: “If state courts

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are to be given the opportunity to correct alleged violations of prisoners’ federal rights,

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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

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her] the due process of law guaranteed by the Fourteenth Amendment, he [or she] must

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say so, not only in federal court, but in state court.” Id. at 366 (emphasis added).

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

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California Supreme Court. In fact, he specifically indicates he did not seek review in the

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California Supreme Court. (See Pet. at 5-8.) If Petitioner has raised his claims in the

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California Supreme Court he must so specify. “The burden of proving that a claim has

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been exhausted lies with the petitioner.” Matthews v. Evatt, 105 F.3d 907, 911 (4th Cir.

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1997); see Breard v. Pruett, 134 F.3d 615, 619 (4th Cir. 1998); Lambert v. Blackwell,

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134 F.3d 506, 513 (3d Cir. 1997); Oyler v. Allenbrand, 23 F.3d 292, 300 (10th Cir.

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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

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

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petition for a writ of habeas corpus by a person in custody pursuant to the judgment of

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a State court. The limitation period shall run from the latest of:
(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. § 2244(d)(1)(A)-(D) (West 2006).

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

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

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(9th Cir. 1999). But see Artuz v. Bennett, 531 U.S. 4, 8 (2000) (holding that “an

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application is ‘properly filed’ when its delivery and acceptance [by the appropriate court

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officer for placement into the record] are in compliance with the applicable laws and

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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

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U.S. 167, 181-82 (2001).

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

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dismissal of a habeas petition “[i]f it plainly appears from the face of the petition and any

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exhibits annexed to it that the petitioner is not entitled to relief in the district court . . .”

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Rule 4, 28 U.S.C. foll. § 2254. Here, it appears plain from the Petition that Petitioner is

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not presently entitled to federal habeas relief because he has not alleged exhaustion of

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state court remedies.
FAILURE TO STATE COGNIZABLE CLAIM ON FEDERAL HABEAS

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Upon review of the Petition, it appears to the Court that a Petition for Writ of

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Habeas Corpus brought pursuant to § 2254 is not the proper vehicle for the claims

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Petitioner presents. Petitioner lists various problems he claims he is facing in prison.

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Specifically, Petitioner claims the California Board of Prison Terms (BPT) failed to

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provide him with forms under the American with Disabilities Act (ADA), which would

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permit him to request accommodations for his April 1, 2015 parole hearing.1 Petitioner’s

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claim is not cognizable on habeas because it does not challenge the constitutional

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validity or duration of confinement. See 28 U.S.C. § 2254(a); Preiser v. Rodriguez, 411

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U.S. 475, 500 (1973); Heck v. Humphrey, 512 U.S. 477, 480-85 (1994). “Section 2254

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applies only to collateral attacks on state court judgments.” McGuire v. Blubaum, 376

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F. Supp. 284, 285 (D. Ariz. 1974).

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In no way does Petitioner claim his state court conviction violates the Constitution

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or laws or treaties of the United States. Rule 4 of the Rules Governing Section 2254

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Cases provides for summary dismissal of a habeas petition “[i]f it plainly appears from

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the face of the petition and any exhibits annexed to it that the petitioner is not entitled

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to relief in the district court.” Rule 4, 28 U.S.C. foll. § 2254. The parole hearing for

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which Petitioner sought accommodation had not yet occurred when the Petition was

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filed. Petitioner fails to allege facts to indicate the failure to provide ADA forms or

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accommodations impacted his BPT hearing, and as such, the duration of his confinement.

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Challenges to the fact or duration of confinement are brought by petition for a writ

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of habeas corpus, pursuant to 28 U.S.C. § 2254; challenges to conditions of confinement

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are brought pursuant to the Civil Rights Act, 42 U.S.C. § 1983. See Preiser, 411 U.S.

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at 488-500. 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

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

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habeas corpus. Id. at 500. On the other hand, a § 1983 action is a proper remedy for a

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state prisoner who is making a constitutional challenge to the conditions of his prison

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life, but not to the fact or length of his custody. Id. at 499; McIntosh v. United States

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Parole Comm’n, 115 F.3d 809, 811-12 (10th Cir. 1997). It appears from the face of the

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Petition that Petitioner challenges the conditions of his prison life, but not the fact or

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Petitioner signed the Petition on March 22, 2015, ten days before the scheduled April
1, 2015 hearing.
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length of his custody.2 Thus, Petitioner has not stated a cognizable habeas claim

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pursuant to § 2254.
CONCLUSION

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Based on the foregoing, the Court DISMISSES this case without prejudice for

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failure to satisfy the filing fee requirement, failure to allege exhaustion and failure to

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state a cognizable claim on habeas corpus. IT IS HEREBY ADJUDGED THAT

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JUDGMENT BE ENTERED DISMISSING THE PETITION AND THE ACTION.

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IT IS SO ORDERED.
DATED: April 16, 2015

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HON. GONZALO P. CURIEL
United States District Judge

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Petitioner currently has a § 1983 complaint pending in the United States District Court
for the Eastern District (filed March 6, 2015), in which Petitioner alleges he was denied forms
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See Downs v. Balls, 15cv0501 KJN (PC) (Cal. ED).
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