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Sandoval v. Unknown

United States District Court, S.D. California

June 27, 2017

LUIS SANDOVAL, Petitioner,
v.
UNKNOWN, Respondent.

          ORDER DISMISSING CASE WITHOUT PREJUDICE AND WITH LEAVE TO AMEND

          Hon. Gonzalo P. Curiel United States District Judge

         Petitioner, proceeding pro se, has filed a document with this Court entitled “In Pro Per Writ of Habeas Corpus.”

         FAILURE TO SATISFY FILING FEE REQUIREMENT

         Petitioner 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.

         IN CUSTODY REQUIREMENT

         Upon 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)).

         FAILURE TO STATE A COGNIZABLE CLAIM

         In 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).

         Petitioner's 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.

         FAILURE TO ALLEGE EXHAUSTION OF STATE JUDICIAL REMEDIES

         Further, 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).

         Nowhere 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 specify.

         Further, 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 ...

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