Stanley v. Asuncion

Filing 3

ORDER Granting 2 Application to Proceed in Forma Pauperis and Dismissing Case Without Prejudice. Signed by Judge Gonzalo P. Curiel on 8/9/17. (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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RICHARD J. STANLEY,

Case No. 17cv1553 GPC (WVG)
Petitioner,

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ORDER: (1) GRANTING
APPLICATION TO PROCEED IN
FORMA PAUPERIS AND
(2) DISMISSING CASE WITHOUT
PREJUDICE

v.
D. ASUNCION, Warden,

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Respondent.

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Petitioner, a state prisoner proceeding pro se, has filed a Petition for Writ of
Habeas Corpus pursuant to 28 U.S.C. § 2254.

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REQUEST TO PROCEED IN FORMA PAUPERIS

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Along with his Petition, Petitioner submitted a copy of his prison trust account

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statement, which this Court liberally construes as a request to proceed in forma pauperis.

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Petitioner has $0.03 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

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

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prosecute the above-referenced action 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

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Writ of Habeas Corpus without prepayment of the filing fee.

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17cv1553 GPC (WVG)

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FAILURE TO STATE A COGNIZABLE CLAIM

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Nonetheless, the Petition must be dismissed without prejudice, in accordance with

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Rule 4 of the rules governing § 2254 cases, because Petitioner has failed to allege that his

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state court conviction or sentence violates the Constitution of the 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

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

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Shimoda, 800 F.2d 1463, 1464-65 (9th Cir. 1986). Thus, to present a cognizable federal

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habeas corpus claim under § 2254, a state prisoner must allege both that he is in custody

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pursuant to a “judgment of a State court,” and that he is in custody in “violation of the

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Constitution or laws or treaties of the United States.” See 28 U.S.C. § 2254(a). Upon

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

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brought pursuant to § 2254 is not the proper vehicle for the claims Petitioner presents.

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Petitioner seeks only to have this Court order the state court to provide him with the trial

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transcripts related to his 1994 conviction in San Diego Superior Court. Petitioner’s claim

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is not cognizable on habeas because it challenge the constitutional validity or duration of

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Petitioner’s confinement. See 28 U.S.C. § 2254(a); Preiser v. Rodriguez, 411 U.S. 475,

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

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to collateral attacks on state court judgments.” McGuire v. Blubaum, 376 F. Supp. 284,

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285 (D. Ariz. 1974).

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In no way does Petitioner he challenge the fact or duration of his conviction, nor

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does he claim his state court conviction violates the Constitution or laws or treaties of the
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17cv1553 GPC (WVG)

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United States. 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.” Rule 4,

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28 U.S.C. foll. § 2254. Here, it is plain from the petition that Petitioner is not presently

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entitled to federal habeas relief because he has not alleged that the state court violated his

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federal rights.

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CONCLUSION

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Based on the foregoing, the Court GRANTS Petitioner’s request to proceed in

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forma pauperis and DISMISSES the Petition without prejudice.
IT IS SO ORDERED.
Dated: August 9, 2017

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17cv1553 GPC (WVG)