Lo v. New Jersey Immigration Court et al, No. 3:2013cv00648 - Document 3 (S.D. Cal. 2013)
Court Description: ORDER denying 2 Motion for Leave to Proceed in forma pauperis. The case is dismissed without prejudice. Petitioner wishes to proceed with this case under Section 2254, Petitioner must, no later than June 11, 2013, provide the Court with: (1) a cop y of this Order together with the $5.00 filing fee; or (2) a copy of this Order together with adequate proof that Petitioner cannot pay the $5.00 filing fee AND a First Amended Petition. Signed by Judge Larry Alan Burns on 4/11/13 (forms mailed to petitioner) (All non-registered users served via U.S. Mail Service)(kaj)
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Lo v. New Jersey Immigration Court et al Doc. 3 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 FATIMA BINETA LO, 12 Civil No. Petitioner, ORDER: 13 v. (1) DENYING IN FORMA PAUPERIS APPLICATION AND 14 15 13-0648 LAB (BLM) NEW JERSEY IMMIGRATION COURT, Respondent. 16 (2) DISMISSING CASE WITHOUT PREJUDICE 17 18 Petitioner, a detainee in the custody of the Department of Homeland Security, Bureau of 19 Immigration and Customs Enforcement, proceeding pro se, filed a Petition for Writ of Habeas 20 Corpus pursuant to 28 U.S.C. § 2254, along with a Motion for Leave to Proceed In Forma 21 Pauperis. [ECF Nos. 1,2.] 22 23 24 25 26 27 FAILURE TO STATE COGNIZABLE 28 U.S. C. § 2254 CLAIM 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 is in custody in violation of the Constitution or laws or treaties of the United States. 28 I:\Everyone\_EFILE-PROSE\LAB\13cv0648 dismiss.wpd, 41113 -1Dockets.Justia.com 1 28 U.S.C. § 2254(a) (emphasis added). See Hernandez v. Ylst, 930 F.2d 714, 719 (9th Cir. 2 1991); Mannhalt v. Reed, 847 F.2d 576, 579 (9th Cir. 1988); Kealohapauole v. Shimoda, 800 3 F.2d 1463, 1464-65 (9th Cir. 1986). Thus, to present a cognizable federal habeas corpus claim 4 under § 2254, a state prisoner must allege both that he is in custody pursuant to a “judgment of 5 a State court,” and that he is in custody in “violation of the Constitution or laws or treaties of the 6 United States.” See 28 U.S.C. § 2254(a). 7 Although Petitioner filed this action pursuant to 28 U.S.C. §2254, Petitioner does not 8 challenge a state court conviction within her Petition. Section 2254 is properly understood as 9 “in effect implement[ing] the general grant of habeas corpus authority found in § 2241 as long 10 as the person is in custody pursuant to the judgment of a state court, and not in state custody for 11 some other reason, such as pre-conviction custody, custody awaiting extradition, or other forms 12 of custody that are possible without a conviction.” [citations omitted.] Id. at 1006 (quoting 13 Walker v. O’Brien, 216 F.3d 626, 633 (7th Cir. 2000) (emphasis in original). “By contrast, the 14 general grant of habeas authority in § 2241 is available for challenges by a state prisoner who 15 is not in custody pursuant to a state court judgment-for example, a defendant in pre-trial 16 detention or awaiting extradition. In these situations, not covered by the limitations in § 2254, 17 the general grant of habeas authority provided by the Constitution and § 2241 will provide 18 jurisdiction for state prisoners' habeas claims.” Id. at 1006 (citing McNeely v. Blanas, 336 F.3d 19 822 (9th Cir.2003) (allowing a pre-trial detainee to proceed under § 2241). 20 Based on the current Petition, it appears the only potential habeas relief available to Petitioner 21 would be the general habeas relief set forth in 28 U.S.C. §2241.1 MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS 22 23 To the extent Petitioner is raising a challenge under 28 U.S.C. § 2254, the request to 24 proceed in forma pauperis is denied because Petitioner has not provided the Court with sufficient 25 information to determine Petitioner’s financial status. A request to proceed in forma pauperis 26 made by a state prisoner must include a certificate from the warden or other appropriate officer 27 1 28 Petitioner currently has a petition pending in this Court pursuant to 28 U.S.C. §2241 in case number 13cv0647 JLS (BGS). I:\Everyone\_EFILE-PROSE\LAB\13cv0648 dismiss.wpd, 41113 -2- 1 showing the amount of money or securities Petitioner has on account in the institution. 2 Rule 3(a)(2), 28 U.S.C. foll. § 2254; Local Rule 3.2. Petitioner has failed to provide the Court 3 with the required Prison Certificate. FAILURE TO NAME PROPER RESPONDENT 4 5 Review of the Petition reveals that Petitioner has failed to name a proper respondent. On 6 federal habeas, a state prisoner must name the state officer having custody of him as the 7 respondent. Ortiz-Sandoval v. Gomez, 81 F.3d 891, 894 (9th Cir. 1996) (citing Rule 2(a), 28 8 U.S.C. foll. § 2254). Federal courts lack personal jurisdiction when a habeas petition fails to 9 name a proper respondent. See id. 10 The warden is the typical respondent. However, “the rules following section 2254 do not 11 specify the warden.” Id. “[T]he ‘state officer having custody’ may be ‘either the warden of the 12 institution in which the petitioner is incarcerated . . . or the chief officer in charge of state penal 13 institutions.’” Id. (quoting Rule 2(a), 28 U.S.C. foll. § 2254 advisory committee’s note). If “a 14 petitioner is in custody due to the state action he is challenging, ‘[t]he named respondent shall 15 be the state officer who has official custody of the petitioner (for example, the warden of the 16 prison).’” Id. (quoting Rule 2, 28 U.S.C. foll. § 2254 advisory committee’s note). 17 A long standing rule in the Ninth Circuit holds “that a petitioner may not seek [a writ of] 18 habeas corpus against the State under . . . [whose] authority . . . the petitioner is in custody. The 19 actual person who is [the] custodian [of the petitioner] must be the respondent.” Ashley v. 20 Washington, 394 F.2d 125, 126 (9th Cir. 1968). This requirement exists because a writ of 21 habeas corpus acts upon the custodian of the state prisoner, the person who will produce “the 22 body” if directed to do so by the Court. “Both the warden of a California prison and the Director 23 of Corrections for California have the power to produce the prisoner.” Ortiz-Sandoval, 81 F.3d 24 at 895. 25 // 26 // 27 Here, Petitioner has incorrectly named “New Jersey Immigration Court,” as Respondent. 28 In order for this Court to entertain the Petition filed in this action, Petitioner must name the I:\Everyone\_EFILE-PROSE\LAB\13cv0648 dismiss.wpd, 41113 -3- 1 warden in charge of the state correctional facility in which Petitioner is presently confined or the 2 Director of the California Department of Corrections. Brittingham v. United States, 982 F.2d 3 378, 379 (9th Cir. 1992) (per curiam). 4 FAILURE TO ALLEGE EXHAUSTION OF STATE JUDICIAL REMEDIES 5 Further, habeas petitioners who wish to challenge either their state court conviction or the 6 length of their confinement in state prison, must first exhaust state judicial remedies. 28 U.S.C. 7 § 2254(b), (c); Granberry v. Greer, 481 U.S. 129, 133-34 (1987). To exhaust state judicial 8 remedies, a California state prisoner must present the California Supreme Court with a fair 9 opportunity to rule on the merits of every issue raised in his or her federal habeas petition. 28 10 U.S.C. § 2254(b), (c); Granberry, 481 U.S. at 133-34. Moreover, to properly exhaust state court 11 remedies a petitioner must allege, in state court, how one or more of his or her federal rights 12 have been violated. The Supreme Court in Duncan v. Henry, 513 U.S. 364 (1995) reasoned: 13 “If state courts are to be given the opportunity to correct alleged violations of prisoners’ federal 14 rights, they must surely be alerted to the fact that the prisoners are asserting claims under the 15 United States Constitution.” Id. at 365-66 (emphasis added). For example, “[i]f a habeas 16 petitioner wishes to claim that an evidentiary ruling at a state court trial denied him [or her] the 17 due process of law guaranteed by the Fourteenth Amendment, he [or she] must say so, not only 18 in federal court, but in state court.” Id. at 366 (emphasis added). 19 Nowhere on the Petition does Petitioner allege that she raised her claims in the California 20 Supreme Court. In fact, she specifically indicates she did not seek review in the California 21 Supreme Court. (See Pet. at 6-9.) If Petitioner has raised her claims in the California Supreme 22 Court she must so specify. “The burden of proving that a claim has been exhausted lies with the 23 petitioner.” Matthews v. Evatt, 105 F.3d 907, 911 (4th Cir. 1997); see Breard v. Pruett, 134 F.3d 24 615, 619 (4th Cir. 1998); Lambert v. Blackwell, 134 F.3d 506, 513 (3d Cir. 1997); Oyler v. 25 Allenbrand, 23 F.3d 292, 300 (10th Cir. 1994); Rust v. Zent, 17 F.3d 155, 160 (6th Cir. 1994). 26 Further, the Court cautions Petitioner that under the Antiterrorism and Effective Death 27 Penalty Act of 1996 (AEDPA) a one-year period of limitation shall apply to a petition for a writ 28 I:\Everyone\_EFILE-PROSE\LAB\13cv0648 dismiss.wpd, 41113 -4- 1 of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation 2 period shall run from the latest of: 3 4 5 6 7 8 9 10 11 12 (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; (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; (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.A. § 2244(d)(1)(A)-(D) (West Supp. 2002). 13 The statute of limitations does not run while a properly filed state habeas corpus petition 14 is pending. 28 U.S.C. § 2244(d)(2); see Nino v. Galaza, 183 F.3d 1003, 1006 (9th Cir. 1999). 15 But see Artuz v. Bennett, 531 U.S. 4, 8 (2000) (holding that “an application is ‘properly filed’ 16 when its delivery and acceptance [by the appropriate court officer for placement into the record] 17 are in compliance with the applicable laws and rules governing filings.”). However, absent some 18 other basis for tolling, the statute of limitations does run while a federal habeas petition is 19 pending. Duncan v. Walker, 533 U.S. 167, 181-82 (2001). 20 Rule 4 of the Rules Governing Section 2254 Cases provides for summary dismissal of a 21 habeas petition “[i]f it plainly appears from the face of the petition and any exhibits annexed to 22 it that the petitioner is not entitled to relief in the district court . . .” Rule 4, 28 U.S.C. foll. 23 § 2254. Here, it appears plain from the Petition that Petitioner is not presently entitled to federal 24 habeas relief because she has not alleged exhaustion of state court remedies. CONCLUSION AND ORDER 25 26 Accordingly, the Court DENIES the request to proceed in forma pauperis, and 27 DISMISSES the case without prejudice for Petitioner’s failure to name state a cognizable 28 habeas claim, name a proper respondent, and allege exhaustion of state court remedies. If I:\Everyone\_EFILE-PROSE\LAB\13cv0648 dismiss.wpd, 41113 -5- 1 Petitioner wishes to proceed with this case under Section 2254, Petitioner must, no later than 2 June 11, 2013, provide the Court with: (1) a copy of this Order together with the $5.00 filing 3 fee; or (2) a copy of this Order together with adequate proof that Petitioner cannot pay the $5.00 4 filing fee AND a First Amended Petition that remedies the pleading deficiencies noted above. 5 The Clerk of Court is directed to send Petitioner a blank Application to Proceed In Forma 6 Pauperis, and a blank section 2254 First Amended Petition. 7 IT IS SO ORDERED. 8 9 DATED: April 11, 2013 10 HONORABLE LARRY ALAN BURNS United States District Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 I:\Everyone\_EFILE-PROSE\LAB\13cv0648 dismiss.wpd, 41113 -6-
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