Anthony v. State of Hawaii

Filing 4

ORDER DISMISSING PETITION WITH LEAVE TO AMEND. Signed by JUDGE DERRICK K. WATSON on 7/30/2014. ~ The Petition is DISMISSED without prejudice. Anthony is DIRECTED to file an amended petition on court forms. He must name a proper resp ondent, assert his grounds for relief, detail the facts supporting those grounds,allege this court's jurisdiction, and sign the amended petition under penalty of perjury on or before August 29, 2014. In the alternative, Anthony may voluntarily dismiss this action without prejudice in light of the courts discussion. To do so, Anthony need only submit a letter to the Clerk of Court stating he would like to dismiss his petition without prejudice on or before August 29, 2014.The Clerk of Co urt is DIRECTED to send Anthony a blank petition for writ of habeas corpus form and in forma pauperis application and instructions. (ecs, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on 7/31/2014.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII

JOSEPH JOHN ANTHONY,

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Petitioner,
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vs.
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STATE OF HAWAII,
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Respondent.
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_____________________________ )

CIV. NO. 14-00323 DKW/RLP
ORDER DISMISSING PETITION
WITH LEAVE TO AMEND

ORDER DISMISSING PETITION WITH LEAVE TO AMEND
Before the court is pro se petitioner Joseph John Anthony’s petition
for writ of habeas corpus. The court has reviewed the Petition under Rule 4 of the
Rules Governing Section 2254 Cases, and dismisses the Petition without prejudice.
Anthony is granted leave to file an amended petition on or before August 29, 2014.
Failure to comply with the court’s instructions and to timely file an amended
petition will result in DISMISSAL of this action.
I. BACKGROUND
Anthony gives no information concerning the criminal proceeding,
conviction, or sentence he challenges. Publicly available state court records show
that Anthony is confined at the Oahu Community Correctional Center (“OCCC”),

pursuant to a grand jury indictment that was issued on June 24, 2014, for an
alleged violation of Hawaii Revised Statutes § 708-0803. See Hawai’i State
Judiciary’s Public Access to Court Information, available at:
http://hoohiki1.courts.state.hi.us/jud/Hoohiki/main.htm; Hawaii v. Anthony, Cr.
No. 1PC14-1-001030, Doc. No. 3. The state court appointed the Hawaii Office of
the Public Defender to represent Anthony on July 17, 2014, nine days after he
signed the present Petition. Id., Doc. No. 7.
II. DISCUSSION
First, parties instituting any civil action, suit or proceeding in a United
States District Court must pay a filing fee. See 28 U.S.C. § 1914(a). An action
may only proceed without prepayment of the filing fee if the party is granted leave
to proceed in forma pauperis. 28 U.S.C. § 1915(a); Rodriguez v. Cook, 169 F.3d
1176, 1177 (9th Cir. 1999). Anthony is DIRECTED to submit the $5.00 civil
filing fee for commencing this action or to seek leave to proceed in forma pauperis.
Second, to avoid confusion and assist petitioners proceeding pro se,
the court requires that all prisoners seeking a writ of habeas corpus use the court’s
approved petition for writ of habeas corpus form. See Local Rules for the District
of Hawaii LR99.7.10. Anthony is DIRECTED to file an amended petition on a
court-approved habeas corpus form.
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Third, a petitioner seeking a writ of habeas corpus must name the state
officer having custody of him as respondent to the petition. See Rule 2(a) of the
Rules Governing § 2254 Cases; Ortiz-Sandoval v. Gomez, 81 F.3d 891, 894 (9th
Cir.1996); Stanley v. Cal. Sup. Ct., 21 F.3d 359, 360 (9th Cir. 1994). The correct
respondent is normally the warden of the facility in which the petitioner is
incarcerated, or the chief officer in charge of state penal institutions. Brittingham
v. United States, 982 F.2d 378, 379 (9th Cir. 1992). Anthony is DIRECTED to
name the official with the ability to release him from custody as Respondent on the
amended petition.
Fourth, Anthony does not specify the grounds he asserts for relief, or
relate any facts supporting such grounds, or sign the Petition under penalty of
perjury. See Rule 2(a) of the Rules Governing § 2254 Cases. Anthony is
DIRECTED to sign the amended petition under penalty of perjury and set forth the
grounds for relief and their supporting facts.
Finally, Anthony provides insufficient information for the court to
determine its jurisdiction over his claims. It is unclear whether the Petition is
brought pursuant to 28 U.S.C. § 2241, because Anthony is a pre-trial detainee
challenging his ongoing state prosecution, or pursuant to 28 U.S.C. § 2254,
because he is challenging an earlier conviction or sentence. The Petition may also
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have been intended for the State of Hawaii courts. Anthony is DIRECTED to
provide sufficient facts for the court to determine the jurisdictional basis for his
claims when he files an amended petition.
III. NOTICES
If Anthony is attempting to enjoin his ongoing state prosecution, he is
notified that a federal court may not enjoin a state criminal proceeding unless
“extraordinary circumstances” exist that warrant federal intervention. Younger v.
Harris, 401 U.S. at 43–54; see also Gilbertson v. Albright, 381 F.3d 965, 984 (9th
Cir. 2004). Younger abstention is appropriate when: (1) the state court proceedings
are ongoing; (2) the proceedings implicate important state interests; and (3) the
state proceedings provide an adequate opportunity to raise the constitutional
claims. Middlesex Cnty. Ethics Comm. v. Garden State Bar Ass’n, 457 U.S. 423,
432 (1982); Baffert v. Cal. Horse Racing Bd., 332 F.3d 613, 617 (9th Cir. 2003).
The Younger abstention doctrine bars requests for declaratory and monetary relief
for constitutional injuries arising out of a plaintiff’s ongoing state criminal
prosecution. Mann v. Jett, 781 F.2d 1448, 1449 (9th Cir. 1986). Younger
abstention continues to apply after conviction, while a case works its way through
the state appellate process. New Orleans Pub. Serv., Inc. v. Council of City of New
Orleans, 491 U.S. 350, 369 (1989).
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Moreover, a person in state custody must exhaust available state court
remedies before a federal court may consider granting habeas corpus relief. See 28
U.S.C. § 2254(b)(1)(A); O’Sullivan v. Boerckel, 526 U.S. 838, 842 (1999). To
satisfy the exhaustion requirement, a habeas petitioner must fairly present his
federal claims in the state courts to give the State the opportunity to pass upon and
correct alleged violations of the prisoner’s federal rights. Duncan v. Henry, 513
U.S. 364, 365 (1995) (per curiam) (citing Picard v. Connor, 404 U.S. 270, 275
(1971)). A habeas petitioner must give the state courts “one full opportunity” to
decide a federal claim by carrying out “one complete round” of the state’s appellate
process in order to properly exhaust a claim. O’Sullivan, 526 U.S. at 845. A
petitioner must present his claims to the highest state court with jurisdiction to
consider it or demonstrate that no state remedy remains available. See Johnson v.
Zenon, 88 F.3d 828, 829 (9th Cir. 1996); Peterson v. Lampert, 319 F.3d 1153,
1156 (9th Cir. 2003) (petitioner must reach point where he has no state remedies
available to him at the time he files his federal habeas petition).
Anthony provides no information regarding the conviction or sentence
he challenges. He gives no indication whether he has challenged and exhausted his
claims in the state courts. If Anthony is challenging his ongoing state criminal

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proceedings, his claims are likely barred by the Younger abstention doctrine or
because they are otherwise unexhausted.
IV. CONCLUSION
The Petition is DISMISSED without prejudice. Anthony is
DIRECTED to file an amended petition on court forms. He must name a proper
respondent, assert his grounds for relief, detail the facts supporting those grounds,
allege this court’s jurisdiction, and sign the amended petition under penalty of
perjury on or before August 29, 2014.
In the alternative, Anthony may voluntarily dismiss this action
without prejudice in light of the court’s discussion. To do so, Anthony need only
submit a letter to the Clerk of Court stating he would like to dismiss his petition
without prejudice on or before August 29, 2014.

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The Clerk of Court is DIRECTED to send Anthony a blank petition
for writ of habeas corpus form and in forma pauperis application and instructions.
IT IS SO ORDERED.
DATED: July 30, 2014, at Honolulu, Hawai’i.

Joseph John Anthony v. State of Hawaii, CIV. NO. 14-000323 DKW/RLP;
ORDER DISMISSING PETITION WITH LEAVE TO AMEND
Anthony v. Hawaii, Civ. No. 14-323; HAB 2014 Anthony 14-323 (res forms exh. Younger); J:\Denise's Draft
Orders\DKW\Anthony 14-323 (resp. forms exh. Younger).wpd

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