Bertrand v. Unknown

Filing 2

ORDER DISMISSING CASE Without Prejudice. Petitioner must, on or before June 24, 2021, file a First Amended Petition. Signed by Judge Gonzalo P. Curiel on 4/26/21.(All non-registered users served via U.S. Mail Service)(dlg)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

SOUTHERN DISTRICT OF CALIFORNIA

10
11

COREY BERTRAND,

Case No.: 21cv0771 GPC (RBM)
Petitioner,

12
13

v.

14

ORDER DISMISSING CASE
WITHOUT PREJUDICE

UNKNOWN,
Respondent.

15
16
17

Petitioner, proceeding pro se, submitted a Petition for a Writ of Habeas Corpus and

18

paid the $5.00 filing fee. (ECF No. 1.) The Court DISMISSES the case without prejudice.

19

FAILURE TO STATE A COGNIZABLE CLAIM

20

The Petition must be dismissed under Rules 2(c) and 4 of the Rules Governing

21

Section 2254 Cases because Petitioner has failed to articulate any grounds for relief and

22

has failed to allege that he is in custody pursuant to a state court conviction or sentence

23

which violates the Constitution of the United States.

24
25
26
27
28

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

1
21cv0771 GPC (RBM)

1

is in custody in violation of the Constitution or laws or treaties of the United
States.

2
3

28 U.S.C. § 2254(a) (emphasis added). See Hernandez v. Ylst, 930 F.2d 714, 719 (9th Cir.

4

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

5

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

6

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

7

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

8

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

9

Petitioner fails to state a cognizable claim because he has not alleged a constitutional

10

violation. A review of the Petition reveals that it fails to articulate any grounds for relief.

11

(See ECF No. 1 at 6-9.) The only attachment to the Petition appears to be Petitioner’s birth

12

certificate, which Petitioner has included without any accompanying statement of

13

explanation. (Id. at 12.) Rule 2(c) of the Rules Governing Section 2254 Cases requires in

14

relevant part that “[t]he petition: (1) must specify all grounds for relief available to the

15

petitioner [and] (2) state the facts supporting each ground.” Rule 2(c)(1)-(2), 28 U.S.C.

16

foll. § 2254. See also Boehme v. Maxwell, 423 F.2d 1056, 1058 (9th Cir. 1970) (trial

17

court’s dismissal of federal habeas proceeding affirmed where petitioner made conclusory

18

allegations instead of factual allegations showing that he was entitled to relief). Here,

19

Petitioner has violated Rule 2(c). Petitioner not only fails to state any grounds for relief in

20

the Petition, but he also fails to state any factual allegations.

21

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

22

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

23

exhibits that the petitioner is not entitled to relief in the district court . . .” Rule 4, 28 U.S.C.

24

foll. § 2254. Here, it is plain from the Petition and attached exhibit Petitioner is not

25

presently entitled to federal habeas relief because he does not state any grounds for relief

26

and therefore in no way does Petitioner claim he is “in custody in violation of the

27

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

28

///
2
21cv0771 GPC (RBM)

1

Further, the Court notes that Petitioner may not be able to simply amend his Petition

2

to state a federal habeas claim and then refile the amended petition in this case. He must

3

exhaust state judicial remedies before bringing his claims in a federal habeas action.

4

Habeas petitioners who wish to challenge either their state court conviction or the length

5

of their confinement in state prison, must first exhaust state judicial remedies. 28 U.S.C.

6

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

7

remedies, a California state prisoner must present the California Supreme Court with a fair

8

opportunity to rule on the merits of every issue raised in his or her federal habeas petition.

9

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

10

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

11

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

12

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

13

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

14

how one or more of his or her federal rights have been violated. For example, “[i]f a habeas

15

petitioner wishes to claim that an evidentiary ruling at a state court trial denied him [or her]

16

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

17

not only in federal court, but in state court.” Duncan v. Henry, 513 U.S. 364, 365-66 (1995)

18

(emphasis added).

19

The Court additionally cautions Petitioner that under the Antiterrorism and Effective

20

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

21

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

22

State court. The limitation period shall run from the latest of:

23

(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;

24
25

(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;

26
27
28

///
3
21cv0771 GPC (RBM)

1
2
3
4
5
6

(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
(D) the date on which the factual predicate of the claim or claims presented
could have been discovered through the exercise of due diligence.
28 U.S.C. § 2244(d)(1)(A)-(D).

7

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

8

petition is pending. 28 U.S.C. § 2244(d)(2); see Nino v. Galaza, 183 F.3d 1003, 1006 (9th

9

Cir. 1999), but see Artuz v. Bennett, 531 U.S. 4, 8 (2000) (holding that “an application is

10

‘properly filed’ when its delivery and acceptance [by the appropriate court officer for

11

placement into the record] are in compliance with the applicable laws and rules governing

12

filings.”). However, absent some other basis for tolling, the statute of limitations does run

13

while a federal habeas petition is pending. Duncan v. Walker, 533 U.S. 167, 181-82 (2001).

14

FAILURE TO NAME A PROPER RESPONDENT/CUSTODY

15

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

16

respondent. On federal habeas, a state prisoner must name the state officer having custody

17

of him as the respondent. Ortiz-Sandoval v. Gomez, 81 F.3d 891, 894 (9th Cir. 1996).

18

Federal courts lack personal jurisdiction when a habeas petition fails to name a proper

19

respondent. See id.

20

Here, Petitioner has not named any respondent. Based on this Court’s review of the

21

Petition, it is unclear whether Petitioner could not name a proper Respondent because he

22

was not in actual or constructive custody at the time the Petition was filed. Petitioner does

23

not include a prison number on his petition form and lists his current address as “2110

24

Basswood Ave., Carlsbad, CA 92008.” (ECF No. 1 at 1.) Moreover, while Petitioner

25

states his arrest date was January 29, 2021, sentencing date was April 1 and he was

26

sentenced to a term of 3 years, 8 months, with respect to sentence start date and projected

27

release date, Petitioner indicates: “Jan 29, 2021. I was released from custody on April 12

28

+ am in a program.” (Id. at 1-2.)
4
21cv0771 GPC (RBM)

1

“Subject matter jurisdiction under the federal habeas corpus statute, 28 U.S.C.

2

§ 2254(a), is limited to those persons ‘in custody pursuant to the judgment of a State.’”

3

Brock v. Weston, 31 F.3d 887, 889 (9th Cir. 1994); see also 28 U.S.C.§ 2241(c)(3). It is a

4

jurisdictional requirement that, at the time a habeas petition is filed, “the habeas petitioner

5

be ‘in custody’ under the conviction or sentence under attack.” Maleng v. Cook, 490 U.S.

6

488, 490-91 (1989) (citing 28 U.S.C. §§ 2241(c)(3) & 2254(a)); see Carafas v. LaVallee,

7

391 U.S. 234, 238 (1968)). Current imprisonment is not required, however, to satisfy the

8

custody requirement; a petitioner can meet this requirement if he suffers from substantial

9

restraints not shared by the public generally as a result of the conviction he is challenging.

10

See e.g., Hensley v. Municipal Court, 411 U.S. 345, 351 (1973) (release on own

11

recognizance); Jones v. Cunningham, 371 U.S. 236, 243 (1963) (parole); United States v.

12

Span, 75 F.3d 1383, 1386 n.5 (9th Cir. 1996) (probation); Benson v. California, 328 F.2d

13

159, 162 (9th Cir. 1964) (probation).

14

If a “petitioner is on probation or parole, he may name his probation or parole officer

15

‘and the official in charge of the parole or probation agency, or the state correctional

16

agency, as appropriate.’” Ortiz-Sandoval, 81 F.3d at 894 (quoting Rule 2, 28 foll. U.S.C.

17

' 2254 advisory committee’s note). A long standing rule in the Ninth Circuit holds “that

18

a petitioner may not seek [a writ of] habeas corpus against the State under . . . [whose]

19

authority . . . the petitioner is in custody. The actual person who is [the] custodian [of the

20

petitioner] must be the respondent.” Ashley v. Washington, 394 F.2d 125, 126 (9th Cir.

21

1968). This requirement exists because a writ of habeas corpus acts upon the custodian of

22

the state prisoner, the person who will produce “the body” if directed to do so by the Court.

23

Ortiz-Sandoval, 81 F.3d at 895.

24

Here, Petitioner has not named any Respondent and simply states he is in a

25

“program.” (See ECF No. 1 at 1-2.) In the event Petitioner is in the custody of a probation,

26

parole, or correctional agency, and in order for this Court to entertain a Petition for Writ of

27

Habeas Corpus, Petitioner must indicate he is in custody and must name the official in

28

charge of the agency. See Ortiz-Sandoval, 81 F.3d at 894.
5
21cv0771 GPC (RBM)

1

CONCLUSION AND ORDER

2

For the reasons discussed above, the Court DISMISSES this case without prejudice.

3

In order to proceed with this habeas action, Petitioner must, on or before June 24, 2021,

4

file a First Amended Petition that raises a cognizable federal claim, alleges exhaustion of

5

state judicial remedies, demonstrates he was in actual or constructive custody (i.e.,

6

probation or parole) at the time he filed the Petition in this case, and names a proper

7

Respondent. The Clerk of Court shall send a blank Southern District of California amended

8

§2254 habeas petition form to Petitioner along with a copy of this Order.

9

IT IS SO ORDERED.

10
11

Dated: April 26, 2021

12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
6
21cv0771 GPC (RBM)