United States District Court, S.D. California
ORDER DISMISSING CASE WITHOUT PREJUDICE AND WITH
LEAVE TO AMEND
MICHAEL M. ANELLO UNITED STATES DISTRICT JUDGE.
a state prisoner proceeding pro se, has filed a Petition for
Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254.
TO SATISFY FILING FEE REQUIREMENT
has failed to pay the $5.00 filing fee and has failed to move
to proceed in forma pauperis. Because this Court cannot
proceed until Petitioner has either paid the $5.00 filing fee
or qualified to proceed in forma pauperis, the Court
DISMISSES the case without prejudice.
See Rule 3(a), 28 U.S.C. foll. § 2254. If
Petitioner wishes to proceed with this case, he must submit,
no later than January 13, 2020, a
copy of this Order with the $5.00 fee or with adequate proof
of his inability to pay the fee.
TO STATE A COGNIZABLE CLAIM ON FEDERAL HABEAS
in accordance with Rule 4 of the rules governing § 2254
cases, Petitioner has failed to allege that his state court
conviction or sentence violates the Constitution of the
28, United States Code, § 2254(a), sets forth the
following scope of review for federal habeas corpus claims:
The Supreme Court, a Justice thereof, a circuit judge, or a
district court shall entertain an application for a writ of
habeas corpus in behalf of a person in custody pursuant to
the judgment of a State court only on the ground that he is
in custody in violation of the Constitution or laws or
treaties of the United States.
28 U.S.C. § 2254(a) (emphasis added). See Hernandez
v. Ylst, 930 F.2d 714, 719 (9th Cir. 1991); Mannhalt
v. Reed, 847 F.2d 576, 579 (9th Cir. 1988);
Kealohapauole v. Shimoda, 800 F.2d 1463, 1464-65
(9th Cir. 1986). Thus, to present a cognizable federal habeas
corpus claim under § 2254, a state prisoner must allege
both that he is in custody pursuant to a “judgment of a
State court, ” and that he is in custody in
“violation of the Constitution or laws or treaties of
the United States.” See 28 U.S.C. §
Petitioner claims that the Department of Corrections and
Rehabilitation “purposely withheld documents, ”
seemingly related to a civil rights complaint. (Pet. at 6,
ECF No. 1.) Petitioner further alleges prison officials have
failed to adequately protect him while in custody.
(Id. at 8.) In no way, however, does Petitioner
claim he is “in custody in violation of the
Constitution or laws or treaties of the United States.”
28 U.S.C. § 2254. Petitioner's claims are not
cognizable on habeas because they do not challenge the
constitutional validity or duration of confinement.
See 28 U.S.C. § 2254(a); Preiser v.
Rodriguez, 411 U.S. 475, 500 (1973); Heck v.
Humphrey, 512 U.S. 477, 480-85 (1994).
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, 411 U.S. at 488-500. 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; McIntosh v.
United States Parole Comm'n, 115 F.3d 809, 811-12
(10th Cir. 1997).
the Court notes that Petitioner cannot simply amend his
Petition to state a federal habeas claim and then refile the
amended petition in this case. He must exhaust state judicial
remedies before bringing his claims via federal habeas. State
prisoners who wish to challenge their state court conviction
must first exhaust state judicial remedies. 28 U.S.C. §
2254(b), (c); Granberry v. Greer, 481 U.S. 129,
133-34 (1987). To exhaust state judicial remedies, a
California state prisoner must present the California Supreme
Court with a fair opportunity to rule on the merits of every
issue raised in his or her federal habeas petition.
See 28 U.S.C. § 2254(b), (c);
Granberry, 481 U.S. at 133-34. Moreover, to properly
exhaust state court judicial remedies a petitioner must
allege, in state court, how one or more of his or her federal
rights have been violated. The Supreme Court in Duncan v.
Henry, 513 U.S. 364 (1995) reasoned: “If state
courts are to be given the opportunity to correct alleged
violations of prisoners' federal rights, they must surely
be alerted to the fact that the prisoners are asserting
claims under the United States Constitution.”
Id. at 365-66 (emphasis added). For example,
“[i]f a habeas petitioner wishes to claim that an
evidentiary ruling at a state court trial denied him the due
process of law guaranteed by the Fourteenth Amendment, he
must say so, not only in federal court, but in state
court.” Id. (emphasis added).
the Court cautions Petitioner that under the Antiterrorism
and Effective Death Penalty Act of 1996, a one-year period of
limitation shall apply 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 shall run from the latest
(A) the date on which the judgment became final by the
conclusion of direct review or the expiration of the time ...