Rose v. State of California, No. 3:2021cv00267 - Document 3 (S.D. Cal. 2021)
Court Description: ORDER Granting Application to Proceed In Forma Pauperis and Dismissing Petition Without Prejudice. Signed by Judge Cathy Ann Bencivengo on 3/1/2021. (All non-registered users served via U.S. Mail Service)(anh)
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Rose v. State of California Doc. 3 Case 3:21-cv-00267-CAB-BGS Document 3 Filed 03/01/21 PageID.53 Page 1 of 6 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 JAMES E. ROSE, JR., aka “Jason E. Roman, III” Petitioner, 13 14 15 Case No.: 21-cv-0267-CAB-BGS ORDER GRANTING APPLICATION TO PROCEED IN FORMA PAUPERIS AND DISMISSING PETITION WITHOUT PREJUDICE v. STATE OF CALIFORNIA, Respondent. 16 17 18 Petitioner, proceeding pro se, has submitted a Petition for Writ of Habeas Corpus 19 20 pursuant to 28 U.S.C. § 2254, together with a request to proceed in forma pauperis. REQUEST TO PROCEED IN FORMA PAUPERIS 21 Petitioner attests that he is unemployed, living on a small fixed income and food 22 23 stamps and has insufficient funds on account to afford the $5.00 filing fee. (ECF No. 2.) 24 The Court therefore GRANTS Petitioner’s application to proceed in forma pauperis, and 25 allows Petitioner to prosecute the above-referenced action as a poor person without being 26 required to prepay fees or costs and without being required to post security. The Clerk of 27 /// 28 1 21-cv-0267-CAB-BGS Dockets.Justia.com Case 3:21-cv-00267-CAB-BGS Document 3 Filed 03/01/21 PageID.54 Page 2 of 6 1 the Court shall file the Petition for Writ of Habeas Corpus without prepayment of the 2 filing fee. 3 4 FAILURE TO STATE A COGNIAZABLE CLAIM The Petition must be dismissed under Rule 4 of the rules governing § 2254 cases 5 because Petitioner has failed to allege that he is in custody after suffering a state court 6 conviction or sentence that violates the Constitution of the United States. 7 8 9 10 11 12 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. 13 14 28 U.S.C. § 2254(a) (emphasis added). See Hernandez v. Ylst, 930 F.2d 714, 719 (9th Cir. 15 1991); Mannhalt v. Reed, 847 F.2d 576, 579 (9th Cir. 1988); Kealohapauole v. Shimoda, 16 800 F.2d 1463, 1464-65 (9th Cir. 1986).Thus, to present a cognizable federal habeas 17 corpus claim under § 2254, a state prisoner must allege both that he is in custody 18 pursuant to a “judgment of a State court,” and that he is in custody in “violation of the 19 Constitution or laws or treaties of the United States.” See 28 U.S.C. § 2254(a). 20 Here, Petitioner claims that he was extradited to California from the state of 21 Georgia sometime in the mid-1970s to face charges in San Diego County. (See Pet., ECF 22 No. 1 at 2–3.) While Petitioner indicates, somewhat vaguely, that he was ultimately 23 convicted in San Diego Superior Court, he does not provide any information as to 24 whether he is still serving a sentence pursuant to that conviction in any capacity. Nor 25 does Petitioner claim his conviction or sentence was in violation of the Constitution or 26 laws or treaties of the United States.” 28 U.S.C. § 2254. 27 28 2 21-cv-0267-CAB-BGS Case 3:21-cv-00267-CAB-BGS Document 3 Filed 03/01/21 PageID.55 Page 3 of 6 1 2 a. Failure to Allege Custody First, based on review of the documents filed in this case, it appears Petitioner is 3 not in the custody of the State of California, nor was he when he filed the Petition. 4 Petitioner failed to include a “place of incarceration” on his in forma pauperis application 5 form (see ECF No. 2 at 1), and on the civil cover sheet, Petitioner listed his current 6 address as “911 Barnsdale Rd., Allentown, PA 18103.” (Pet. Civ. Cover Sheet, ECF No. 7 1-1.) Furthermore, Petitioner does not allege anywhere in the Petition or its attachments 8 that he was on parole or otherwise in constructive custody at the time of filing. (See Pet., 9 ECF No. 1.) 10 “Subject matter jurisdiction under the federal habeas corpus statute, 28 U.S.C. 11 § 2254(a), is limited to those persons ‘in custody pursuant to the judgment of a State.’” 12 Brock v. Weston, 31 F.3d 887, 889 (9th Cir. 1994); see also 28 U.S.C. § 2241(c)(3). It is a 13 jurisdictional requirement that, at the time a habeas petition is filed, “the habeas 14 petitioner be ‘in custody’ under the conviction or sentence under attack.” Maleng v. 15 Cook, 490 U.S. 488, 490–91 (1989) (citing 28 U.S.C. §§ 2241(c)(3) & 2254(a)); see 16 Carafas v. LaVallee, 391 U.S. 234, 238 (1968)). 17 As noted above, while not entirely clear from the Petition, it appears Petitioner is 18 attempting to challenge his extradition to California from Georgia, which apparently took 19 place in the mid-1970s. He claims the state of California had “no legal papers” to 20 transport him across state lines after he was arrested in Georgia, sometime in “1974 or 21 1973.” (See Pet., ECF No. 1, Ex. A at 9.) Petitioner may not challenge the constitutional 22 validity of his extradition because it appears he is no longer in actual custody pursuant to 23 a warrant or subsequent conviction and does not allege he was in constructive custody 24 (e.g., parole or probation) at the time he filed the Petition in this case. See Brock, 31 F.3d 25 at 889. “[O]nce the sentence imposed for a conviction has completely expired, the 26 collateral consequences of that conviction are not themselves sufficient to render an 27 28 3 21-cv-0267-CAB-BGS Case 3:21-cv-00267-CAB-BGS Document 3 Filed 03/01/21 PageID.56 Page 4 of 6 1 individual ‘in custody’ for the purposes of a habeas attack upon it.” Maleng, 290 U.S. at 2 490; see Feldman v. Perrill, 902 F.2d 1445, 1448 (9th Cir. 1990) (stating that an expired 3 conviction cannot satisfy the “in custody” requirement). 4 b. 5 Petitioner also fails to state a cognizable claim because he has not alleged a 6 constitutional violation. As noted above, Petitioner appears to challenge the propriety of 7 his extradition to California some 45 years ago, after which it appears he was convicted 8 of homicide. (Pet., ECF No. 1 at 3.) He has not, however, claimed that his Constitutional 9 rights were violated. Instead, he is “demanding that all criminal charges of homicide be Failure to Allege Constitutional Violation 10 purged from his criminal records” because he was “unlawfully removed from the State of 11 Georgia and placed on trial. . .without a scintilla of evidence.” (Id. at 3–4.) In no way 12 does Petitioner claim he is in custody “in violation of the Constitution or laws or treaties 13 of the United States.” 28 U.S.C. § 2254. 14 Rule 4 of the Rules Governing § 2254 Cases provides for summary dismissal of a 15 habeas petition “[i]f it plainly appears from the face of the petition and any exhibits 16 annexed to it that the petitioner is not entitled to relief in the district court. . ..” Rule 4, 28 17 U.S.C. foll. § 2254. Here, it is plain from the Petition that Petitioner is not presently 18 entitled to federal habeas relief because he was not in the custody of the State of 19 California when he filed his § 2254 Petition in this Court. Accordingly, the Court 20 dismisses the action. 21 Further, the Court notes that Petitioner cannot simply amend his Petition to state a 22 federal habeas claim and then refile the amended petition in this case. He must exhaust 23 state judicial remedies before bringing his claims via federal habeas. State prisoners who 24 wish to challenge their state court conviction must first exhaust state judicial remedies. 25 28 U.S.C. § 2254(b), (c); Granberry v. Greer, 481 U.S. 129, 133–34 (1987). To exhaust 26 state judicial remedies, a California state prisoner must present the California Supreme 27 28 4 21-cv-0267-CAB-BGS Case 3:21-cv-00267-CAB-BGS Document 3 Filed 03/01/21 PageID.57 Page 5 of 6 1 Court with a fair opportunity to rule on the merits of every issue raised in his or her 2 federal habeas petition. See 28 U.S.C. § 2254(b), (c); Granberry, 481 U.S. at 133–34. 3 Moreover, to properly exhaust state court judicial remedies a petitioner must allege, in 4 state court, how one or more of his or her federal rights have been violated. The Supreme 5 Court in Duncan v. Henry, 513 U.S. 364 (1995) reasoned: “If state courts are to be given 6 the opportunity to correct alleged violations of prisoners’ federal rights, they must surely 7 be alerted to the fact that the prisoners are asserting claims under the United States 8 Constitution.” Id. at 365–66 (emphasis added). For example, “[i]f a habeas petitioner 9 wishes to claim that an evidentiary ruling at a state court trial denied him the due process 10 of law guaranteed by the Fourteenth Amendment, he must say so, not only in federal 11 court, but in state court.” Id. (emphasis added). 12 Additionally, the Court cautions Petitioner that under the Antiterrorism and 13 Effective Death Penalty Act of 1996, a one-year period of limitation shall apply to a 14 petition for a writ of habeas corpus by a person in custody pursuant to the judgment of a 15 State court. The limitation period shall run from the latest of: 16 (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; 17 18 (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; 19 20 21 22 (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 23 24 25 26 27 28 /// 5 21-cv-0267-CAB-BGS Case 3:21-cv-00267-CAB-BGS Document 3 Filed 03/01/21 PageID.58 Page 6 of 6 1 2 (D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence. 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 28 U.S.C. § 2244(d)(1)(A)-(D) (West Supp. 2002). The Court also notes that the statute of limitations does not run while a properly filed state habeas corpus petition is pending. 28 U.S.C. § 2244(d)(2); see Nino v. Galaza, 183 F.3d 1003, 1006 (9th Cir. 1999). But see Artuz v. Bennett, 531 U.S. 4, 8 (2000) (holding that “an application is ‘properly filed’ when its delivery and acceptance [by the appropriate court officer for placement into the record] are in compliance with the applicable laws and rules governing filings.”). However, absent some other basis for tolling, the statute of limitations does run while a federal habeas petition is pending. Duncan v. Walker, 533 U.S. 167, 181-82 (2001). CONCLUSION Based on the foregoing, the Court GRANTS Petitioner’s application to proceed in forma pauperis and DISMISSES this action because Petitioner has failed to satisfy the custody requirement and failed raise a cognizable federal claim. See 28 U.S.C. §§ 2241(c)(3), 2254(a). In order to proceed with this case, Petitioner must, no later than April 30, 2021, file a First Amended Petition that raises a cognizable federal claim and demonstrates he was in actual custody or constructive custody (i.e., probation or parole) at the time he filed the Petition in this case. IT IS SO ORDERED. Dated: March 1, 2021 23 24 25 26 27 28 6 21-cv-0267-CAB-BGS
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