The opinion of the court was delivered by: Sheila K. Obertoie United States Magistrate Judge
ORDER DISMISSING THE PETITION WITH LEAVE TO FILE A FIRST AMENDED PETITION NO MORE THAN THIRTY (30) DAYS AFTER THE DATE OF SERVICE OF THIS ORDER DEADLINE FOR AMENDED PETITION: THIRTY (30) DAYS AFTER SERVICE OF THIS ORDER ORDER DIRECTING THE CLERK TO SEND TO PETITIONER A BLANK § 2254 HABEAS CORPUS PETITION FORM
Petitioner is a state prisoner proceeding pro se and in forma pauperis with a petition pursuant to 28 U.S.C. § 2254. The matter has been referred to the Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1) and Local Rules 302 and 303.
When the petition was filed, Petitioner was an inmate of the Avenal State Prison located within the Eastern District of California; he was serving a sentence of seventeen years to life for a conviction of second degree murder sustained in the Orange County Superior Court in 1991. (Pet. 1-2.) On December 2, 1009, Petitioner filed a petition for writ of habeas corpus in the United States District Court for the Central District of California. On December 7, 2009, Magistrate Judge Robert N. Block issued an order dismissing the petition with leave to amend because it was "virtually unintelligible," and it was unclear whether Petitioner was challenging his 1991 sentence or a past or prospective action of the "Parole Board." (Doc. 3, 1.) Judge Block noted that if the petition challenged Petitioner's 1991 sentence, it appeared to be time-barred on its face; if it challenged a decision of the Parole Board, it was subject to transfer to this district because Petitioner's institution of confinement at Avenal was within this district. (Id. at 3.) The order directed that if Petitioner still desired to pursue his action in the Central District, he was ordered to file an amended petition within thirty days of service or face dismissal without prejudice for failure to prosecute. (Id. at 4-5.)
On December 23, 2009, Petitioner filed a motion to appeal the order dismissing the petition with leave to amend. (Doc. 4.)
On January 14, 2010, an order of District Judge A. Howard Matz issued from the Central District construing Petitioner's motion to appeal as a timely filed objection to the order dismissing the petition with leave to amend. (Doc. 5.) Judge Matz reviewed the petition and concurred with the Magistrate Judge's conclusion that Petitioner did not clearly articulate his claims. Judge Matz further noted that in the objections, Petitioner clarified that his claims were directed to a 2008 change in California law that Petitioner contended exposed him to a sufficient risk of prolonged incarceration and more severe punishment as well as a deprivation of good-time, work-time credits without fair notice, all in violation of the prohibition against ex post facto laws. (Id. at 2-3.) The court thus transferred the petition to this district as the district of confinement. (Id. at 4.)
II. Screening the Petition
Rule 4 of the Rules Governing § 2254 Cases in the United States District Courts (Habeas Rules) requires the Court to make a preliminary review of each petition for writ of habeas corpus. The Court must summarily dismiss a petition "[i]f it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court...." Habeas Rule 4; O'Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 1990); see also Hendricks v. Vasquez, 908 F.2d 490 (9th Cir. 1990). Habeas Rule 2(c) requires that a petition 1) specify all grounds of relief available to the Petitioner; 2) state the facts supporting each ground; and 3) state the relief requested. Notice pleading is not sufficient; rather, the petition must state facts that point to a real possibility of constitutional error. Rule 4, Advisory Committee Notes, 1976 Adoption; O'Bremski v. Maass, 915 F.2d at 420 (quoting Blackledge v. Allison, 431 U.S. 63, 75 n. 7 (1977)). Allegations in a petition that are vague, conclusory, or palpably incredible are subject to summary dismissal. Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Cir. 1990).
Further, the Court may dismiss a petition for writ of habeas corpus either on its own motion under Habeas Rule 4, pursuant to the respondent's motion to dismiss, or after an answer to the petition has been filed. Advisory Committee Notes to Habeas Rule 8, 1976 Adoption; see, Herbst v. Cook, 260 F.3d 1039, 1042-43 (9th Cir. 2001).
In the petition, Petitioner generally challenges changes made in 2008 in the laws of California (Cal. Pen. Code § 3041(a)(2), (3); Cal. R. Ct. 4.421, 4.423; Cal. Code Regs. tit. 15, § 2402) that he alleges affect a constitutional right to good time and work time conduct credits. Petitioner contends that the changes further exposed him to a sufficient risk of prolonged incarceration and more severe punishment without fair notice, in violation of the prohibition against ex post facto laws and the requirements of due process of law. He alleges that the new laws and the punishment imposed pursuant to them are invalid, and seeks a judicial declaration of the invalidity of the law.
Preliminarily the Court notes that the essence of habeas corpus is an attack by a person in custody upon the legality of that custody. Habeas corpus relief is available where the claims implicate the fact or duration of the petitioner's confinement. Preiser v. Rodriguez, 411 U.S. 475, 485-87 (1973). Because of the dearth of factual underpinning for Petitioner's claims, it does not appear that success in this action would necessarily spell immediate or speedier release for Petitioner. It is, therefore, possible that Petitioner's claims are more appropriately brought pursuant to 42 U.S.C. § 1983. See, Wilkinson v. Dotson, 544 U.S. 74, 81-82 (2005); but see, Docken v. Chase, 393 F.3d 1024, 1031 (9th Cir. 2004) (permitting habeas corpus where there is an undeniable, potential relationship between the claim and the duration of confinement). Petitioner has not alleged specific facts that point to a real possibility of constitutional error affecting the fact or duration of his confinement.
However, assuming that habeas corpus is a proper remedy, Petitioner has not alleged specific facts that demonstrate that he has standing to raise his claims. The jurisdiction of this Court is limited to cases and controversies. U.S. Const. Art III, § 1.
For this Court to have subject matter jurisdiction, a petitioner must have standing to sue at the time the action is filed. Lujan v. Defenders of Wildlife, 504 U.S. 555, 569 n.4 (1992). To meet his burden of establishing standing, a litigant must show that 1) he personally has suffered an actual or prospective injury as a result of the putatively illegal conduct; 2) the injury can be fairly traced to the challenged conduct; and 3) the injury is likely to be redressed through court action. Lujan v. Defenders of Wildlife, 504 U.S. 560-562; Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 472 (1982). Plaintiff must have suffered an "injury in fact," i.e., an invasion of a legally protected interest which is a) concrete and particularized, and b) actual or imminent, and not ...