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Escobar v. California Corrections Dept.

United States District Court, C.D. California

December 2, 2019

BRYAN K. ESCOBAR, Petitioner,
v.
CALIFORNIA CORRECTIONS DEPT., Respondent.

          ORDER DISMISSING PETITION WITHOUT PREJUDICE

          GEORGE H. WU UNITED STATES DISTRICT JUDGE.

         I. INTRODUCTION

         On January 14, 2019, Petitioner Bryan K. Escobar (“Petitioner”) constructively filed Petition for Writ of Habeas Corpus by a Person in State Custody pursuant to 28 U.S.C. § 2254 (the “Petition”). (Dkt. 1.) Petitioner is a California state prisoner presently incarcerated at the RJ Donovan Correctional Facility after pleading nolo contendere to “possession of a firearm.” (Id. at 2.)

         Petitioner raises five grounds for habeas relief: (1) his conviction violates the Second Amendment, because he has a right to “possess a firearm for household safety”; (2) his conviction violates the First Amendment, because he has “a right to protest against non-religious belief based on [his] religion …”; (3) his conviction constitutes cruel and unusual punishment, because he is at risk of assault while in custody; (4) the search that led to discovery of the firearm violated the Fourth Amendment; and (5) he is eligible for early release under Proposition 57.[1] (Id. at 5-6.) Petitioner included with the Petition Form CR-187, which requests resentencing in the California state courts. (Id. at 11-12.)

         II. PROCEDURAL HISTORY

         On August 10, 2017, Petitioner was convicted and sentenced in Los Angeles County. (Id. at 2.) Petitioner does not allege that he pursued any direct appeal or filed any collateral challenges prior to filing the instant Petition. (Id. at 3-4.) A search of the online California Appellate Courts Case Information System has also revealed no such filings. See https://appellatecases.courtinfo.ca.gov/. Petitioner constructively filed the Petition on January 14, 2019. (Dkt. 1.)

         On February 5, 2019, the Court screened the Petition pursuant to Rule 4 of the Rules Governing § 2254 Petitions and determined: (1) the Petition appears untimely because, absent tolling, Petitioner had until October 9, 2018 to file the Petition, and (2) the Petition appears unexhausted because Petitioner does not claim to have exhausted any of his ground for relief by fairly presenting them to the California Supreme Court (see id. at 2-8). (Dkt. 4.) The Court ordered Petitioner to show cause why the Petition should not be dismissed, by doing the following on or before March 4, 2019: (1) show that the Petition is timely, and (2) show that the Petition is exhausted or move for a stay under Rhines v. Weber, 544 U.S. 269 (2005). (Id. at 6.) The Court noted, however, that Petitioner might encounter difficulty meeting the Rhines standard because his habeas claims appeared to lack merit. (Id. at 5.) Several of his grounds for relief appeared to be civil rights claims rather than habeas claims; the Court noted that Petitioner could opt to file a notice of voluntary dismissal and then file a civil rights lawsuit in the Southern District of California (i.e., the jurisdiction where he is presently in custody). (Id. at 5-6.)

         On February 6, 2019, the Court denied Petitioner's request to proceed in forma pauperis (“IFP”) because Petitioner did not submit a certified copy of his inmate trust account statement as required by Rule 3(a) of the Rules Governing § 2254 Petitions. (Dkt. 5.) The Court ordered Petitioner to either submit a completed IFP application or pay the $5.00 filing fee within thirty days. (Id.)

         On February 26, 2019, the Court received Petitioner's renewed application to proceed IFP, which included: (1) an inmate trust account statement (not certified), (2) a Rules Violation Report, (3) a drawing, (4) a “chrono” for removal from his academic program because Petitioner possesses a high school diploma, (5) an appeal disposition indicating that Petitioner is “identified with a disability/communication issue” and requires several “Adaptive Supports” in prison, (6) a “Notice of Classification Hearing” recognizing Petitioner's disability and showing that Petitioner was previously incarcerated at California Health Care Facility in Stockton, California (“CHCF”), [2] and (7) a handwritten letter from 2018 describing Petitioner's family life and struggles with homelessness. (Dkt. 6.) The Court denied the renewed IFP application because it did not include an affidavit with a statement of assets or a certified inmate trust account statement for the six months preceding the filing of the Petition. (Dkt. 7.) The Court provided Petitioner an additional thirty days to file a completed application or pay the filing fee. (Id.)

         After Petitioner failed to timely discharge the order to show cause, on March 18, 2019 the Court sua sponte granted Petitioner an additional thirty days to discharge the order. The Court required him to file a notice stating that he intends to do one of the following: (1) pursue federal habeas relief in this Court, despite the Petition's defects identified on screening, or (2) file a civil rights action in the Southern District of California. (Dkt. 8.)

         On March 18, 2019, the Court received a renewed IFP application, which also did not include the certificate of an authorized officer or Petitioner's trust account statement for the six months preceding the filing of the Petition. (Dkt. 9.) The Court denied the request, explaining that Petitioner's trust account statement was not certified and encompassed only the three months preceding the filing of the Petition. (Dkt. 10.) The Court granted Petitioner thirty days to file a renewed request to proceed IFP. (Id.)

         On April 11, 2019, the Court received a notice from Petitioner indicating that he intends to pursue federal habeas and Proposition 57 relief in this Court (Dkt. 11), although the Court had previously explained that Proposition 57 relief is not a federal habeas claim. Petitioner included with his filing the first page of an order from an Eastern District of California case (1:19-cv-00321), in which Petitioner was granted permission to proceed IFP.[3]

         On April 16, 2019, understanding that Petitioner intended to pursue federal habeas relief in this Court, the Court reinstated the initial order to show cause (Dkt. 4) and ordered Petitioner to do the following on or before May 16, 2019: (1) show that the Petition is timely, (2) show that his grounds for relief are exhausted or move for a Rhines stay, and (3) if he agrees that his Eighth Amendment and Proposition 57 grounds for relief are civil rights claims (rather than federal habeas claims), then file a notice of voluntary dismissal of those claims. (Dkt. 12.) The Court also sent Petitioner Form CV-60 (Declaration in Support of Request to Proceed IFP) and ordered Petitioner to file a renewed IFP request on or before May 16, 2019, completing the affidavit and submitting a copy of his inmate trust account statement, certified by an authorized prison officer, for the six months preceding the filing of the Petition; alternatively, Petitioner could pay the $5.00 filing fee. (Id. at 3.) Petitioner did not respond.

         III. ...


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