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Sandoval v. Unknown

United States District Court, S.D. California

July 17, 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.

         On June 16, 2017, Petitioner, proceeding pro se, filed a document with this Court entitled “In Pro Per Writ of Habeas Corpus” [ECF No. 1]. The Court dismissed the action without prejudice and with leave to amend on June 27, 2017, because Petitioner had failed to satisfy the filing fee requirement, was not in custody, had failed to state a cognizable federal claim or allege exhaustion of his claims, and had failed to name a proper respondent [ECF No. 2]. Petitioner was given until August 29, 2017, to either pay the $5.00 filing fee or submit adequate proof of his inability to pay the fee, and to submit a First Amended Petition that cured the pleading deficiencies outlined in the Court's June 27, 2017 Order. Id.

         On July 13, 2017, Petitioner filed a document which the Court construes as a First Amended Petition.

         FAILURE TO SATISFY FILING FEE REQUIREMENT

         Petitioner has again failed to either pay the $5.00 filing fee or 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 First Amended Petition, 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

         As with Petitioner's first filing, 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, Petitioner has not alleged 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.” See Duncan v. Henry, 513 U.S. 364, 365-66 (1995)(emphasis added).

         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 ...


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