Fritz v. Gore et al

Filing 2

ORDER DISMISSING CASE Without Prejudice. Signed by Judge Cynthia Bashant on 3/31/2021.(All non-registered users served order and blank petition forms via U.S. Mail Service)(anh)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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CHRISTIAN FRITZ,

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Petitioner,

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v.

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Case No.: 21-cv-00510-BAS (MDD)
ORDER DISMISING CASE
WITHOUT PREJUDICE

GORE, et al.,

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Respondents.

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Petitioner, who is currently detained at the San Diego County Jail and is proceeding

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pro se, has filed a Petition for a Writ of Habeas Corpus (“Petition”) pursuant to 28 U.S.C.

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§ 2254 and has paid the $5.00 filing fee. (ECF No. 1.) For the reasons stated below,

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Petitioner’s action is DISMISSED WITHOUT PREJUDICE.

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I.

FAILURE TO STATE A COGNIZABLE FEDERAL CLAIM UNDER § 2254

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Petitioner has failed to allege that his state court conviction or sentence violates the

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Constitution of the United States, as required by Rule 4 of the rules governing § 2254 cases.

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Section 2254(a) sets forth the following scope of review for federal habeas corpus claims:

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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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Thus, to present a cognizable federal habeas corpus claim under § 2254, a state prisoner

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must allege both that he is in custody pursuant to a “judgment of a State court” and in

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“violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a);

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see Hernandez v. Ylst, 930 F.2d 714, 719 (9th Cir. 1991) (only alleged violations of the

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Constitution, not state law violations, are cognizable under § 2254(a)).

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With respect to the one enumerated claim for relief, Petitioner states that he

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“tendered/posted financial instruments/bonds to settle all outstanding liabilities in relation

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to all charges as was his right as the beneficiary to said securities properties.” (Pet. at 6.)

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As such, he argues, “Respondents were not allowed to keep beneficiary after bonds posted

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for settlement.” (Id.) He thus “assigns the Judge of Court as trustee and instructs the court

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to discharge all civil and criminal debts and set beneficiary at liberty,” citing a federal case

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and statute which, Petitioner claims, apply to commercial crimes and liability. (Id.)

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Petitioner indicates the underlying offenses relating to his case are California Penal Code

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and Health and Safety Code violations concerning possession of a controlled substance

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while armed, felon in possession of a firearm, possession of ammunition by a person

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prohibited from possessing a firearm, and possession of a silencer. (See id. at 2 (citing Cal.

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Health and Safety Code § 11370.1(a), Cal. Penal Code §§ 29800(a)(1), 30305(a)(1),

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33410).)

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Petitioner also indicates that his trial court case number is CD 289050 but has not

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completed the portions of the Petition form concerning conviction or sentencing dates or

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length of sentence. (Pet. at 1–2.) The electronic docket of the San Diego Superior Court,

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of which the Court takes judicial notice,1 reflects that this criminal case was filed on

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February 17, 2021. (See Sup. Ct. of Calif., Cty. of San Diego Case Number Search, Case

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No. CD 289050 at http://courtindex.sdcourt.ca.gov/CISPublic/casesearch (last visited

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March 29, 2021).) Because Petitioner fails to indicate he has been convicted and sentenced,

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Petitioner fails to allege he is in custody pursuant to the judgment of a state court.

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See United States v. Wilson, 631 F.2d 118, 119 (9th Cir. 1980) (“[A] court may take judicial
notice of its own records in other cases, as well as the records of an inferior court in other cases.”).
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While Petitioner has not invoked the specific grant of habeas jurisdiction for a person

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in custody pursuant to a state court judgment under § 2254, § 2241 confers on this Court a

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general grant of habeas jurisdiction for state prisoners who contend they are “in custody in

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

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2241(c)(3); see also id. § 2241(a). District courts have jurisdiction under § 2241 over

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federal habeas petitions brought by state court pretrial detainees. See, e.g., McNeely v.

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Blanas, 336 F.3d 822, 824 n.1 (9th Cir. 2003) (quoting 28 U.S.C. § 2254) (“[B]ecause

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Petitioner is a pretrial detainee, he is not being held ‘pursuant to the judgment of a State

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court.’ Therefore, his claim falls under 28 U.S.C. § 2241.”).

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As stated in the Conclusion of this Order, Petitioner has the option of initiating a

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new action under § 2241 if he so chooses. However, a § 2241 action will still be subject

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to the exhaustion requirement explained below.

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II.

FAILURE TO ALLEGE EXHAUSTION OF STATE JUDICIAL REMEDIES

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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

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

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judicial remedies, a California state prisoner must present the California Supreme Court

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with a fair opportunity to rule on the merits of every issue raised in his or her federal habeas

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petition. 28 U.S.C. § 2254(b), (c); Granberry, 481 U.S. at 133–34. Ordinarily, to satisfy

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

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

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

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Moreover, to properly exhaust state court remedies a petitioner must allege, in state court,

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how one or more of his or her federal rights have been violated. 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]

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

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not only in federal court, but in state court.” Duncan v. Henry, 513 U.S. 364, 365–66

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(1995).
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Petitioner has not alleged exhaustion of state remedies. Petitioner does not allege

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that he raised his one enumerated claim in the California Supreme Court; rather, that

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portion of his Petition was left blank. (Pet. at 6.) If Petitioner has raised his claim in the

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California Supreme Court, he must so specify.

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

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

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exhibits that the petitioner is not entitled to relief in the district court . . . .” Here, it appears

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plain from the Petition that Petitioner is not presently entitled to federal habeas relief

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because he has not alleged exhaustion of state court remedies. Moreover, to the extent

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Petitioner seeks to proceed under § 2241 rather than section 2254, Petitioner is cautioned

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that § 2241 also has an exhaustion requirement. See, e.g., Ward v. Chavez, 678 F.3d 1042,

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1045 (9th Cir. 2012); Laing v. Ashcroft, 370 F.3d 994, 997–98 (9th Cir. 2004).

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Additionally, to the extent Petitioner’s state case is ongoing, the Court would be

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compelled to abstain pursuant to Younger v. Harris, 401 U.S. 37 (1971). Under Younger,

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federal courts may not interfere with ongoing state criminal proceedings absent

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extraordinary circumstances. Id. at 45–46; see Middlesex County Ethics Comm. v. Garden

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State Bar Ass’n, 457 U.S. 423, 431 (1982) (Younger “espouse[d] a strong federal policy

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against federal-court interference with pending state judicial proceedings.”). It is presently

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unclear whether abstention applies or whether § 2254 or § 2241 is the proper vehicle for

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Petitioner’s claim given Petitioner’s failure to complete significant sections of the Petition

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form, particularly those concerning conviction date, sentencing date and length of sentence.

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III.

CONCLUSION AND ORDER

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For the foregoing reasons, the Petition is DISMISSED without prejudice and with

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leave to amend. If Petitioner wishes to proceed with a habeas action pursuant to § 2254,

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he must, no later than May 31, 2021, file a First Amended Petition that cures the pleading

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deficiencies outlined in the instant Order. If Petitioner instead seeks to proceed with a

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habeas action pursuant to § 2241, he must file a new habeas action pursuant to 28 U.S.C.

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§ 2241, which will be given a new civil case number. The Clerk of Court is directed to
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mail Petitioner a blank Amended Petition for Writ of Habeas Corpus pursuant to 28 U.S.C

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§ 2254 and a blank Petition for Writ of Habeas Corpus pursuant to 28 U.S.C § 2241

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together with a copy of this Order.

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IT IS SO ORDERED.

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DATED: March 31, 2021

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