Biser v. Idaho State Supreme Court 9th Circuit

Filing 5

INITIAL REVIEW ORDER - IT IS ORDERED: Petitioner's Application to Proceed in Forma Pauperis (Dkt. #1 ) is GRANTED. Petitioner must pay the $5.00 filing fee when Petitioner next receives funds in Petitioner's inmate trust account. Petitioner's request for appointment of counsel (contained in the Petition) is DENIED without prejudice. Within 28 days after entry of this Order, Petitioner must file an amended petition as described above. Signed by US Magistrate Judge Debora K Grasham. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (hs)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

URIAH LAMAR BISER,
Case No. 1:24-cv-00599-DKG
Petitioner,
INITIAL REVIEW ORDER
v.
IDAHO STATE SUPREME COURT
and NINTH CIRCUIT,
Respondents.

Petitioner Uriah Lamar Biser has filed a Petition for Writ of Habeas Corpus
challenging Petitioner’s state court convictions in three separate cases. See Dkt. 3. The
Court now reviews the Petition to determine whether it is subject to summary dismissal
pursuant to 28 U.S.C. § 2243 and Rule 4 of the Rules Governing Section 2254 Cases
(“Habeas Rules”). Having reviewed the record, and otherwise being fully informed, the
Court enters the following Order directing Petitioner to file an amended petition if
Petitioner intends to proceed.
REVIEW OF PETITION
1.

Standard of Law for Review of Petition
Federal habeas corpus relief under 28 U.S.C. § 2254 is available to petitioners who

show that they are held in custody under a state court judgment and that such custody
violates the Constitution, laws, or treaties of the United States. See 28 U.S.C. § 2254(a).
The Court is required to review a habeas corpus petition upon receipt to determine
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whether it is subject to summary dismissal. Habeas Rule 4. Summary dismissal is
appropriate where “it plainly appears from the face of the petition and any attached
exhibits that the petitioner is not entitled to relief in the district court.” Id.
Habeas Rule 2(c) requires a habeas petition to “specify all the grounds for relief
available to the petitioner” and “state the facts supporting each ground.” Because all of
the facts and grounds for relief must be included in the petition, the Court—and
Respondent—need not consider allegations or arguments set forth in other documents.
See Sivak v. Christensen, No. 1:16-CV-00189-BLW, 2018 WL 4643043, at *2 (D. Idaho
Sept. 27, 2018) (unpublished) (“The Court was not required to meticulously search
through the many documents Petitioner submitted with his Petition. Instead, it was
entitled to rely on the habeas Petition itself to contain all of the information necessary to
adjudicate that Petition.”).
2.

Discussion
In three separate cases in the Fourth Judicial District Court in Ada County, Idaho,

Petitioner was convicted of battery on a police officer, eluding, two counts of possession
of a controlled substance, and possession of paraphernalia.
The instant Petition asserts two vague claims. In Claim 1, Petitioner asserts
violations of his rights based on the “burden of proof,” “foul play,” “miscarriage,” and
“negligence.” Dkt. 3 at 2. Claim 2 includes similar language with the addition of “due
process” and a brief reference to the Eighth Amendment. Id. These bare invocations of
the Due Process Clause and the Eighth Amendment, the only federal provisions asserted

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with respect to either claim, are insufficient to identify the alleged violations.1 A habeas
claim must identify the specific constitutional right alleged to have been violated and
must include all supporting facts.
Here, the Petition includes no facts in support of either claim, other than an eightpage, single-paragraph narrative that does not clearly identify any particular facts in
support of any particular claim. Further, the Petition is unclear as to which claims
challenge which criminal conviction.
Moreover, Petitioner has not complied with Habeas Rule 2(d), which states that
any § 2254 petition must “substantially follow either the form appended to these rules or
a form prescribed by a local district-court rule.” This Court has adopted a local form for
§ 2254 petitioners. Therefore, within 28 days after entry of this Order, Petitioner must file
an amended petition that complies with Rule 2(d).
Ideally, Petitioner should file separate amended petitions as to each state court
case he challenges, clearly identifying the convictions and case numbers applicable to
each case. The Clerk of Court will be directed to provide Petitioner with this Court’s
forms for § 2254 petitions, and Petitioner is encouraged and expected to use those forms
to draft any amended petition.

1

In a separate section of the Petition, Petitioner appears to attempt to assert civil rights claims of violation
of religious freedom, discrimination, and racial segregation. However, such claims do not “lie at the core
of habeas corpus” and, therefore, “may not be brought in habeas corpus but must be brought, if at all,”
under 42 U.S.C. § 1983, the civil rights statute. Nettles v. Grounds, 830 F.3d 922, 931 (9th Cir. 2016) (en
banc) (internal quotation marks and citations omitted).

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Finally, Petitioner has not named a proper respondent. Under Habeas Rule 2(a),
the proper respondent in a habeas corpus action is the “officer who has custody” of the
petitioner. In the ordinary case, this officer is “the warden of the facility where the
prisoner is being held.” Rumsfeld v. Padilla, 542 U.S. 426, 435 (2004).
Here, however, it appears Petitioner is in the legal custody of the Idaho
Department of Correction (“IDOC”) but is physically detained in the Ada County Jail.
See IDOC Resident/Client Search, https://www.idoc.idaho.gov/content/prisons/residentclient-search/details/137838 (accessed Jan. 24, 2025). Therefore, the appropriate
respondent appears to be Josh Tewalt, the current director of the IDOC. See Ziegler v.
Washington, No. C10-5263 BHS/KLS, 2010 WL 2331030, at *1 (W.D. Wash. June 10,
2010) (unpublished) (“Because [petitioner] is in custody pursuant to a Washington state
court judgment, but is currently housed in an out-of-state prison, he should name Eldon
Vail, Secretary of the Washington Department of Corrections as the respondent in his
habeas petition.”).
Petitioner will be allowed to amend his Petition to cure the above deficiencies.
APPLICATION TO PROCEED IN FORMA PAUPERIS
Petitioner has applied for in forma pauperis status. Good cause appearing,
Petitioner’s Application will be granted, which allows Petitioner to pay the filing fee
when and as Petitioner can afford to do so, rather than at the time of filing. Petitioner is
ordered to pay the $5.00 filing fee when Petitioner next receives funds in Petitioner’s
inmate trust account.

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REQUEST FOR APPOINTMENT OF COUNSEL
Because an amended petition is required for Petitioner to proceed, the Court will
deny Petitioner’s request for appointment of counsel without prejudice. Petitioner may
renew the request for counsel in an amended petition.
ORDER
IT IS ORDERED:
1.

Petitioner’s Application to Proceed in Forma Pauperis (Dkt. 1) is
GRANTED. Petitioner must pay the $5.00 filing fee when Petitioner next
receives funds in Petitioner’s inmate trust account.

2.

Petitioner’s request for appointment of counsel (contained in the Petition) is
DENIED without prejudice.

3.

Within 28 days after entry of this Order, Petitioner must file an amended
petition as described above. Ideally, Petitioner should file separate amended
petitions as to each state court case he challenges, clearly identifying the
convictions and case numbers applicable to each case. Each claim must
clearly indicate which state court conviction it challenges, must identify the
particular constitutional right alleged to have been violated, and must
contain specific supporting facts.

4.

If Petitioner fails to file a timely amended petition, or if it appears from the
face of the amended petition that Petitioner is not entitled to relief, this case
may be reassigned to a district judge for consideration of dismissal.

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5.

The Clerk of Court will provide Petitioner with three copies of the Court’s
form § 2254 petition, and Petitioner is encouraged and expected to use
those forms in drafting any amended petition.

DATED: January 28, 2025

_________________________
Honorable Debora K. Grasham
United States Magistrate Judge

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