Lee v. DBA et al

Filing 7

ORDER: The Petition for Writ of Habeas Corpus 1 is summarily dismissed with leave to amend. Should petitioner wish to continue with this case, he must file an amended petition within 30 days which complies with the terms of this Order. His failure to do so within the time allotted will result in the dismissal of this case, without prejudice. Petitioner's Petition for Restraining Order 4 and Motion for Default Judgment 5 are denied. The Clerk of Court is DIRECTED to send petitioner a form 28 U.S.C. § 2254 habeas corpus form for his use. Signed on 6/1/15 by Judge Marco A. Hernandez. (Mailed order and 2254 form to petitioner) (dsg)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
Case No. 3:15-cv-00805-ST

DAVID-PAUL LEE,

ORDER

Petitioner,

v.
DBA, et al.,
Respondents.
HERNANDEZ, District Judge.
On May 11,
U.S.C.

§

2015,

petitioner filed what appears to be a 28

2254 habeas corpus action against a variety of judges,

prosecutors, court clerks, and others.

It is not clear from the

Petition that petitioner is currently in custody, 1 and federal
habeas corpus only law permits prisoners to challenge the validity
of convictions under which they are "in custody."
Fordice,

515 U.S. 39,

43-44

1445, 1446 (9th Cir. 1990);

1

(1995); Feldman v. Perrill,

902 F.2d

Brock v. Weston, 31 F.3d 887, 889 (9th

Petitioner's current
correctional facility.
1 - ORDER

Garlotte v.

address

does

not

appear

to be a

Cir. 1994) .
concrete

Once a habeas petitioner's sentence has expired, "some
and

incarceration

continuing
or

injury

parole--some

other

than

'collateral

the

now-ended

consequence'

conviction--must exist if the suit is to be maintained."

v.

Kemna,

523 U.S.

1,

7

(1998).

490-91 (1989); Feldman,

In addition,
corpus

petition

Brittingham v.

the

petitioner's

United States,

(citation omitted); Stanley v.
359, 360 (9th Cir. 1994).

Maleng v. Cook, 490

in a

federal

immediate

982 F.2d 378,

379

at

360

(citing

habeas

custodian."

(9th Cir.

California Supreme Court,

1992)

21 F.3d

This person is typically the warden of

the facility in which the petitioner is incarcerated.
F.3d

Spencer

902 F.2d at 1448.

"[t] he proper respondent
is

the

The custody requirement must be

satisfied at the time the petition is filed.
U.S. 488,

of

Brittingham,

982

F.2d

at

379).

Stanley, 21
Where

the

petitioner is on probation or parole, the proper respondents are
his probation or parole officer and the official in charge of the
parole or probation agency.
894

(9th Cir.

custody

1996).

pursuant

respondents

both

to
the

Ortiz-Sandoval v. Gomez, 81 F.3d 891,

Where the petitioner is subject to future
a

state-court
officer

who

judgment,
has

current

attorney general of the state where the

he

"must

custody

name
and

as
the

judgment was entered."

Rule 2(b) of the Rules Governing Section 2254 Cases.

It does not

appear that petitioner names the appropriate respondent(s) to this
action.
2 - ORDER

Moreover, Local Rule 81-1 requires petitions under 28 U.S.C.
§

2254 to be filed on forms provided by the court.

not utilized this form.

Accordingly, the court summarily dismisses

the Petition for Writ of Habeas Corpus (docket #1).
§

2254 (b);

U.S. C.

Rule 4,

foll.

§

Petitioner has

See 28 U.S.C.

Rules Governing Section 2254 Proceedings,

2254

28

(permitting summary dismissal of petition) .

Should petitioner wish to continue with this case, he must file an
amended petition within 30 days on the form to be provided by the
court.
his

Petitioner is ADVISED that the amended petition must name

proper

respondent (s),

cannot

incorporate

any

part

of

his

original Petition by reference, and must identify the custody to
which he is currently subject and that he seeks to challenge in
this case.
Petitioner is FURTHER ADVISED that a petitioner seeking habeas
relief must first exhaust his claims by fairly presenting them to
the

state's

highest

court,

either

through

a

direct

appeal

or

collateral proceedings, before a federal court will consider the
merits of habeas corpus claims pursuant to 28 U.S.C.

v. Lundy, 455 U.S. 509, 519 (1982).

§

2254.

Rose

If petitioner has not fairly

presented his claims to the Oregon state courts, they will either
be considered premature, or procedurally defaulted.

Under either

scenario, the claims will be ineligible for federal court review.
Because the court summarily dismisses the Petition for Writ of
Habeas Corpus, it also denies petitioner's Petition for Restraining

3 - ORDER

Order (docket #4).

Although petitioner believes he is entitled to

a default judgment based upon respondents'

failure to respond to

his Petition, it does not appear respondents were ever served with
a

copy of the Petition.

dismisses the Petition,
responsive pleading.

Moreover,

where the court sua sponte

respondents are not obligated to file a

Accordingly, the Motion for Default Judgment

(docket #5) is denied.
CONCLUSION

The

Petition

for

Writ

of

Habeas

summarily dismissed with leave to amend.

Corpus

(docket

#1)

is

Should petitioner wish to

continue with this case, he must file an amended petition within 30
days which complies with the terms of this Order.

His failure to

do so within the time allotted will result in the dismissal of this
case, without prejudice.
Petitioner's Petition for Restraining Order

(docket #4)

Motion for Default Judgment (docket #5) are denied.
Court is DIRECTED to send petitioner a form 28 U.S.C.

The Clerk of
§

2254 habeas

corpus form for his use.
IT IS SO ORDERED.
DATED this

day

of~

1MwC-O

2015.

\AVJrm\~

Marco A. Hernantlez
United States D~strict Judge

4 - ORDER

and