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Johnson v. Fernandez

United States District Court, C.D. California

February 4, 2015


Derrick L Johnson, Petitioner, Pro se, Quartzsite, AZ.

GEORGE H. WU, UNITED STATES DISTRICT JUDGE. John E. McDermott, United States Magistrate Judge.



On August 28, 2014, Petitioner filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. On September 9, 2014, Petitioner filed a First Amended Petition (" FAP"). For the reasons set forth below, the FAP is dismissed without prejudice.


In his FAP, Petitioner challenges the validity of an order issued by the Riverside County Superior Court. According to Petitioner, on May 2, 2014, Court Commissioner Kenneth J. Fernandez issued a " domestic violence restraining order requiring 'no contact' with [Petitioner's] children, []ex-spouse[] Malisa Johnson, and personal separate property." (FAP at 2, 5-6.) Petitioner alleges that Court Commissioner Fernandez's actions in issuing this order violated Petitioner's constitutional rights to substantive and procedural due process as well as to equal protection of the laws. Specifically, Petitioner states that Court Commissioner Fernandez entered the order in question without proper authority or procedural protections, including lack of notice and denial of the right to present evidence and cross-examine witnesses at the hearing. Petitioner also claims that the challenged state court order applies an erroneous legal standard and violates Petitioner's " right to [an] unbiased tribunal" and his fundamental right to parent his children and to " own property." (FAP at 5-6.) Petitioner apparently requests that the Court enjoin the enforcement of this order. (FAP at 2, 6.) There is no indication that Petitioner is or ever has been in state custody in connection with the state proceedings at issue. As best the Court can tell, it seems Petitioner seeks judicial intervention regarding state court proceedings related to marital and child custody issues.


I. Standard of Review

Pursuant to Rule 4 of the Rules Governing § 2254 Cases in the United States District Courts, a district court may summarily dismiss a habeas corpus petition, before the respondent files an answer, " [i]f it plainly appears from the face of the petition . . . that the petitioner is not entitled to relief." The notes to Rule 4 state: " 'a dismissal may be called for on procedural grounds, which may avoid burdening the respondent with the necessity of filing an answer on the substantive merits of the petition.'" See Boyd v. Thompson, 147 F.3d 1124, 1127-28 (9th Cir. 1998); White v. Lewis, 874 F.2d 599, 602-03 (9th Cir. 1989).

Rule 4 is also applicable and permits summary dismissal when no claim for relief is stated. O'Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 1990), cert. denied, 498 U.S. 1096, 111 S.Ct. 986, 112 L.Ed.2d 1070 (1991). Summary dismissal is appropriate where the allegations in the petition are vague or conclusory, palpably incredible, or patently frivolous or false. Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Cir. 1990) (quoting Blackledge v. Allison, 431 U.S. 63, 75-76, 97 S.Ct. 1621, 52 L.Ed.2d 136 (1977)). Because Petitioner has stated no viable basis for relief over which the Court has jurisdiction, the FAP is patently frivolous and must be dismissed without prejudice.

II. The Court Lacks Subject Matter Jurisdiction Over The FAP

The district court has the power and the duty to raise the adequacy of an applicant's standing to bring suit and the existence of subject matter jurisdiction. Bernhardt v. County of Los Angeles, 279 F.3d 862, 868 (9th Cir. 2002); Benavidez v. Eu, 34 F.3d 825, 830 (9th Cir. 1994). " If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action." Fed.R.Civ.P. 12(h)(3); Franklin v. Oregon Welfare Div., 662 F.2d 1337, 1342 (9th Cir. 1981).

The Court lacks subject matter jurisdiction to entertain the FAP under 28 U.S.C. § 2254 or any of the habeas corpus statutes. Under 28 U.S.C. § 2254, a federal court " shall entertain an application for a writ of habeas corpus . . . only on the ground that [the applicant] is in custody in violation of the Constitution or laws or treaties of the United States." Likewise, 28 U.S.C. § 2255 permits a habeas petition by a " prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States[.]" Finally, 28 U.S.C. § 2241 extends to " prisoner[s]" in custody under specified circumstances. Thus, the applicant must be " in custody" in order to establish subject matter jurisdiction for purposes of habeas review.

Here, the FAP alleges that Court Commissioner Fernandez acted without proper authority and contrary to law in connection with domestic relations proceedings involving Petitioner, his children, and his ex-wife. Petitioner alleges that Court Commissioner Fernandez violated Petitioner's constitutional rights in these proceedings. There is no allegation that Petitioner is or has been in custody as a result of these state proceedings, and this type of deprivation does not rise to the level of " custody" required by federal habeas statutes. See Lehman v. Lycoming County Children's Services, 458 U.S. 502, 512-16, 102 S.Ct. 3231, 73 L.Ed.2d 928 (1982) (" extending the federal writ to challenges to state child-custody decisions -- challenges ...

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