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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 RICHARD J. STANLEY, Case No. 17cv1553 GPC (WVG) Petitioner, 12 13 14 ORDER: (1) GRANTING APPLICATION TO PROCEED IN FORMA PAUPERIS AND (2) DISMISSING CASE WITHOUT PREJUDICE v. D. ASUNCION, Warden, 15 Respondent. 16 17 18 Petitioner, a state prisoner proceeding pro se, has filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. 19 REQUEST TO PROCEED IN FORMA PAUPERIS 20 Along with his Petition, Petitioner submitted a copy of his prison trust account 21 statement, which this Court liberally construes as a request to proceed in forma pauperis. 22 Petitioner has $0.03 on account at the California correctional institution in which he is 23 presently confined. Petitioner cannot afford the $5.00 filing fee. Thus, the Court 24 GRANTS Petitioner’s application to proceed in forma pauperis, and allows Petitioner to 25 prosecute the above-referenced action without being required to prepay fees or costs and 26 without being required to post security. The Clerk of the Court shall file the Petition for 27 Writ of Habeas Corpus without prepayment of the filing fee. 28 1 17cv1553 GPC (WVG) 1 FAILURE TO STATE A COGNIZABLE CLAIM 2 Nonetheless, the Petition must be dismissed without prejudice, in accordance with 3 Rule 4 of the rules governing § 2254 cases, because Petitioner has failed to allege that his 4 state court conviction or sentence violates the Constitution of the United States. 5 6 7 8 9 10 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. 11 12 28 U.S.C. § 2254(a) (emphasis added). See Hernandez v. Ylst, 930 F.2d 714, 719 (9th 13 Cir. 1991); Mannhalt v. Reed, 847 F.2d 576, 579 (9th Cir. 1988); Kealohapauole v. 14 Shimoda, 800 F.2d 1463, 1464-65 (9th Cir. 1986). Thus, to present a cognizable federal 15 habeas corpus claim under § 2254, a state prisoner must allege both that he is in custody 16 pursuant to a “judgment of a State court,” and that he is in custody in “violation of the 17 Constitution or laws or treaties of the United States.” See 28 U.S.C. § 2254(a). Upon 18 review of the Petition, it appears to the Court that a Petition for Writ of Habeas Corpus 19 brought pursuant to § 2254 is not the proper vehicle for the claims Petitioner presents. 20 Petitioner seeks only to have this Court order the state court to provide him with the trial 21 transcripts related to his 1994 conviction in San Diego Superior Court. Petitioner’s claim 22 is not cognizable on habeas because it challenge the constitutional validity or duration of 23 Petitioner’s confinement. See 28 U.S.C. § 2254(a); Preiser v. Rodriguez, 411 U.S. 475, 24 500 (1973); Heck v. Humphrey, 512 U.S. 477, 480-85 (1994). “Section 2254 applies only 25 to collateral attacks on state court judgments.” McGuire v. Blubaum, 376 F. Supp. 284, 26 285 (D. Ariz. 1974). 27 In no way does Petitioner he challenge the fact or duration of his conviction, nor 28 does he claim his state court conviction violates the Constitution or laws or treaties of the 2 17cv1553 GPC (WVG) 1 United States. Rule 4 of the Rules Governing Section 2254 Cases provides for summary 2 dismissal of a habeas petition “[i]f it plainly appears from the face of the petition and any 3 exhibits annexed to it that the petitioner is not entitled to relief in the district court.” Rule 4, 4 28 U.S.C. foll. § 2254. Here, it is plain from the petition that Petitioner is not presently 5 entitled to federal habeas relief because he has not alleged that the state court violated his 6 federal rights. 7 CONCLUSION 8 Based on the foregoing, the Court GRANTS Petitioner’s request to proceed in 9 10 11 forma pauperis and DISMISSES the Petition without prejudice. IT IS SO ORDERED. Dated: August 9, 2017 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 17cv1553 GPC (WVG)

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