United States District Court, N.D. California
ORDER DENYING PETITIONER'S PENDING MOTION; GRANTING RESPONDENT'S MOTION TO DISMISS PETITION AS UNEXHAUSTED; AND DENYING CERTIFICATE OF APPEALABILITY
YVONNE GONZALEZ ROGERS, District Judge.
Petitioner, a state prisoner, has filed this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, raising three claims. In an Order dated August 12, 2013, the Court ordered Respondent to show cause why the petition should not be granted.
Before the Court are (1) Respondent's motion to dismiss the petition for failure to exhaust state court remedies (dkt. 9) and (2) Petitioner's pending motion (dkt. 7), which the Court construes as his motion for leave to have another inmate, Laurince O'Sheigh Simpson, formally receive status as Petitioner's "next friend" or as what he refers to as "Counsel Substitute."
For the reasons below, the Court DENIES Petitioner's pending motion, GRANTS Respondent's motion to dismiss, and DISMISSES this action.
I. Petitioner's Pending Motion
Petitioner has filed a motion for leave to have inmate Simpson formally receive status as Petitioner's "next friend." Dkt. 7. On September 19, 2013, the date Petitioner filed the aforementioned motion, he claims that he was about to "be transferred out-of-state involuntarily, thereby effecting a separation between [him] and [his] pivotal and key work-product drafted, Counsel Substitute' Laurince O'Sheigh Simpson, removing [his] ability to timely prosecute this case." Dkt. 7 at 3.
First, the Court notes that as of Petitioner's most recent filing, dated July 21, 2014, he has not in fact been transferred to another facility. Dkt. 16. He is still incarcerated at the Correctional Training Facility in Soledad, California. Id. at 5. In addition, Petitioner seems to still be receiving assistance from inmate Simpson. Id. at 4. In any event, the Court shall address Petitioner's pending request.
A person other than the detained person may file an application for a writ of habeas corpus and establish standing as a "next friend." Whitmore v. Arkansas, 495 U.S. 149, 163 (1990). A next friend does not himself become a party to the habeas petition, "but simply pursues the cause on behalf of the detained person, who remains the real party in interest." Id. There are two firmly rooted prerequisites to "next friend" standing:
First, a next friend must provide an adequate explanation - such as inaccessibility, mental incompetency, or other disability - why the real party in interest cannot appear on his own behalf to prosecute the action. Second, the next friend must be truly dedicated to the best interests of the person on whose behalf he seeks to litigate and it has been further suggested that a next friend must have some significant relationship with the real party in interest. The burden is on the next friend clearly to establish the propriety of his status and thereby justify the jurisdiction of the court.
Id. at 163-64 (citations omitted). Petitioner has not met the first prong. He does not allege or show inaccessibility, incompetency, or other disability. Rather, his request is based simply on the fact that he is incarcerated and pro se, and that he requires legal assistance from inmate Simpson, who is not an attorney but who has assisted him "with every aspect of [his] case." Dkt. 7 at 3.
Petitioner has also not met the second prong of the test, which requires that the putative next friend have both a significant relationship with the real party in interest and true dedication to his or her interests . See Coalition of Clergy, Lawyers and Professors v. Bush, 310 F.3d 1153, 1161-62 (9th Cir. 2002). Petitioner does not include a declaration that describes the nature of their relationship or avers that he trusts that inmate Simpson is truly dedicated to Petitioner's interests. Given the fact that Petitioner has continued to receive help from inmate Simpson even without "next friend" status, and his failure to satisfy either prong of the "next friend" test, Petitioner's motion for leave to have inmate Simpson formally receive status as Petitioner's "next friend" is DENIED. Dkt. 7.
II. Respondent's Motion to Dismiss
On May 12, 2009, a Contra Costa County jury convicted Petitioner, a former caregiver at an assisted care facility, of forcible rape (Cal. Penal Code § 261(a)(2); count 1); forcible oral copulation (Cal. Penal Code § 288a(c)(2); count 2); and two counts of lewd acts upon a dependent person (Cal. Penal Code § 288(c)(2); counts 3&4). With respect to counts 1 and 2, the jury found true the allegation that the victim was sixty-five years old or older at the time of the offenses and that Petitioner knew or reasonably should have known of ...