United States District Court, S.D. California
ORDER DISMISSING CASE WITHOUT PREJUDICE AND WITH
LEAVE TO AMEND
Gonzalo P. Curiel United States District Judge
proceeding pro se, has filed a document with this Court
entitled “In Pro Per Writ of Habeas Corpus.”
TO SATISFY FILING FEE REQUIREMENT
has failed to pay the $5.00 filing fee and has failed to move
to proceed in forma pauperis. This Court cannot proceed until
Petitioner has either paid the $5.00 filing fee or qualified
to proceed in forma pauperis. See Rule 3(a), 28
U.S.C. foll. § 2254.
review of the document filed in this case, it appears
Petitioner is not in the custody of the State of California,
nor was he when he filed the Petition because he lists his
address as “2461½ J. St., San Diego, CA
92102.” “Subject matter jurisdiction under the
federal habeas corpus statute, 28 U.S.C. § 2254(a), is
limited to those persons ‘in custody pursuant to the
judgment of a State.'” Brock v. Weston, 31
F.3d 887, 889 (9th Cir. 1994); see also 28 U.S.C.
§ 2241(c)(3). It is a jurisdictional requirement that,
at the time a habeas petition is filed, “the habeas
petitioner be ‘in custody' under the conviction or
sentence under attack.” Maleng v. Cook, 490
U.S. 488, 490-91 (1989) (citing 28 U.S.C. §§
2241(c)(3) & 2254(a)); see Carafas v. LaVallee,
391 U.S. 234, 238 (1968)).
TO STATE A COGNIZABLE CLAIM
addition, it is not clear what Petitioner's claims are
and whether they are cognizable on federal habeas review.
Challenges to the fact or duration of confinement are brought
by petition for a writ of habeas corpus, pursuant to 28
U.S.C. § 2254; challenges to conditions of confinement
are brought pursuant to the Civil Rights Act, 42 U.S.C.
§ 1983. See Preiser v. Rodriguez, 411 U.S. 475,
488-500 (1973). When a state prisoner is challenging the very
fact or duration of his physical imprisonment, and the relief
he seeks is a determination that he is entitled to immediate
release or a speedier release from that imprisonment, his
sole federal remedy is a writ of habeas corpus. Id.
at 500. On the other hand, a § 1983 action is a proper
remedy for a state prisoner who is making a constitutional
challenge to the conditions of his prison life, but not to
the fact or length of his custody. Id. at 499;
see 28 U.S.C. 2254(a); Heck v. Humphrey,
512 U.S. 477, 480-85 (1994).
claims are not comprehensible in their current form. If
Petitioner wishes to challenge the conditions of prison life,
but not the fact or length of his custody, he must file a
civil rights complaint pursuant to 42 U.S.C. § 1983. If
he wishes to challenge the validity of a state court
conviction or the length of his sentence, 28 U.S.C. §
2254 is the appropriate method to do so.
TO ALLEGE EXHAUSTION OF STATE JUDICIAL REMEDIES
habeas petitioners who wish to challenge either their state
court conviction or the length of their confinement in state
prison, must first exhaust state judicial remedies. 28 U.S.C.
§ 2254(b), (c); Granberry v. Greer, 481 U.S.
129, 133-34 (1987). Ordinarily, to satisfy the exhaustion
requirement, a petitioner must “‘fairly
present' his federal claim to the highest state court
with jurisdiction to consider it, or . . . demonstrate that
no state remedy remains available.” Johnson v.
Zenon, 88 F.3d 828, 829 (9th Cir. 1996) (citations
omitted). Moreover, to properly exhaust state court remedies
a petitioner must allege, in state court, how one or more of
his or her federal rights have been violated. For example,
“[i]f a habeas petitioner wishes to claim that an
evidentiary ruling at a state court trial denied him [or her]
the due process of law guaranteed by the Fourteenth
Amendment, he [or she] must say so, not only in federal
court, but in state court.” Duncan v. Henry,
513 U.S. 364, 365-66 (1995).
on the Petition does Petitioner allege that he raised his
claims in the California Supreme Court. If Petitioner has
raised his claims in the California Supreme Court he must so
the Court cautions Petitioner that under the Antiterrorism
and Effective Death Penalty Act of 1996 (“AEDPA”)
a one-year period of limitation applies to a petition for a
writ of habeas corpus by a person in custody pursuant to the
judgment of a State court. The limitation period runs from
the latest of:
(A) the date on which the judgment became final by the
conclusion of direct review or the expiration of the time ...