Wright v. Borla

— 1 — — 2 — — 3 — — 4 — — 5 — — 6 — — 7 — — 8 — 9 UNITED STATES DISTRICT COURT 10 SOUTHERN DISTRICT OF CALIFORNIA — 11 — 12 DELANO WRIGHT, Case No.: 24-cv-01997-AJB-MMP 13 Petitioner, ORDER GRANTING MOTION TO 14 v. PROCEED IN FORMA PAUPERIS AND DISMISSING PETITION 15 E. BORLA, WITHOUT PREJUDICE 16 Respondent. (Doc. No. 2) — 17 — — 18 — 19 On June 8, 2024, Petitioner Delano Wright (“Petitioner”), a state prisoner proceeding 20 pro se, constructively filed a Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 21 2254 (the “Petition”).1 (Doc. No. 1.) Petitioner has also filed a motion to proceed in forma 22 pauperis. (Doc. No. 2.) For the reasons discussed below, the Court GRANTS Petitioner’s 23 motion to proceed in forma pauperis and DISMISSES the Petition without prejudice. — 24 — — 25 — 1 While the federal Petition is filed-stamped October 24, 2024, the constructive filing date for federal 26 habeas purposes is presumed to be June 8, 2024, the date Petitioner indicates he handed it to correctional officers for mailing to the Court, as reflected on the proof of service accompanying the Petition. See Doc. 27 No. 1 at 1, 43; see Huizar v. Carey, 273 F.3d 1220, 1222 (9th Cir. 2001) (“Under the ‘prison mailbox rule’ of Houston v. Lack, 487 U.S. 266 (1988), a prisoner’s federal habeas petition is deemed filed when he — 28 — 1 MOTION TO PROCEED IN FORMA PAUPERIS 2 Petitioner has $0.98 on account at the California correctional institution in which he 3 is presently confined (see Doc. No. 2 at 7) and cannot afford the $5.00 filing fee.2 4 Accordingly, the Court GRANTS Petitioner’s motion to proceed in forma pauperis and 5 allows him to prosecute the above-referenced action without being required to prepay fees 6 or costs and without being required to post security. The Clerk of Court will file the 7 Petition without prepayment of the filing fee. 8 FAILURE TO STATE A COGNIZABLE FEDERAL CLAIM 9 In accordance with Rule 4 of the Rules Governing § 2254 cases, Petitioner has failed 10 to allege that his state court conviction or sentence violates the Constitution of the United 11 States or laws or treaties of the United States. 12 Title 28, United States Code, § 2254 (a), sets forth the following scope of review for 13 federal habeas corpus claims: 14 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 — 15 — custody pursuant to the judgment of a State court only on the ground that he 16 is in custody in violation of the Constitution or laws or treaties of the United States. — 17 — — 18 — 28 U.S.C. § 2254 (a) (emphasis added). See Hernandez v. Ylst, 930 F.2d 714, 719 (9th Cir. 19 1991); Mannhalt v. Reed, 847 F.2d 576, 579 (9th Cir. 1988); Kealohapauole v. Shimoda, — 20 — 800 F.2d 1463 , 1464–65 (9th Cir. 1986). Thus, to present a cognizable federal habeas 21 corpus claim under § 2254, a state prisoner must allege both that he is in custody pursuant — 22 — — 23 — — 24 — 25 2 A petitioner is required to provide the Court with a trust account statement for the six-month period “immediately preceding” the filing of his habeas corpus petition. See 28 U.S.C. § 1915 (a). While the 26 instant motion is file-stamped October 24, 2024, it is accompanied by a trust account statement spanning December 2023 through May 2024, and a prison certificate dated June 12, 2024. (See Doc. No. 2 27 generally.) However, because Petitioner signed the motion on June 6, 2024 (see id. at 3 ), and the accompanying envelope reflects a mailing date of June 13, 2024 (see id. at 9 ), the Court finds Petitioner — 28 — 1 to a “judgment of a State court,” and that he is in custody in “violation of the Constitution 2 or laws or treaties of the United States.” See 28 U.S.C. § 2254 (a). 3 In the sole claim in the Petition, Petitioner alleges that “[t]he trial court had imposed 4 an illegal sentence,” citing California Department of Corrections correspondence regarding 5 an error in the abstract of judgment (see Doc. No. 1 at 6), which the trial court later ordered 6 corrected but denied Petitioner’s accompanying request for a full resentencing. (Id. at 29, 7 31–32.) However, Petitioner does not assert or allege any federal constitutional violation 8 arising from the asserted error. (See id. at 6 ; see generally Doc No. 1.) Thus, in no way 9 does Petitioner claim he is “in custody in violation of the Constitution or laws or treaties 10 of the United States.” 28 U.S.C. § 2254 (a). 11 Rule 4 of the Rules Governing § 2254 Cases provides for summary dismissal of a 12 habeas petition “[i]f it plainly appears from the face of the petition and any attached 13 exhibits that the petitioner is not entitled to relief in the district court . . .” R. 4, Rules 14 Governing Section 2254 Cases (2019). Here, it is plain from the Petition that Petitioner is 15 not presently entitled to federal habeas relief because he has not alleged that the state court 16 violated his federal rights. Because there is no ground upon which to entertain the Petition, 17 the Court must dismiss the case. 18 Further, the Court notes that Petitioner cannot simply amend his Petition to state a 19 federal habeas claim and then refile the amended petition in this case unless he also alleges 20 that he has exhausted state judicial remedies as to that federal claim before bringing it via 21 federal habeas.3 22 Habeas petitioners who wish to challenge either their state court conviction or the 23 length of their confinement in state prison, must first exhaust state judicial remedies. 28 — 24 — — 25 — 26 3 Petitioner indicates he filed a petition for review in the California Supreme Court, which was denied and includes a copy of that denial (see Doc. No. 1 at 4, 40), but Petitioner does not specify if that 27 petition contained the claim he wishes to present in this Court. Additionally, Petitioner has simply left blank the portion of the habeas petition form asking if he raised Ground One in the California Supreme — 28 — 1 U.S.C. § 2254 (b), (c); Granberry v. Greer, 481 U.S. 129 , 133–34 (1987). To exhaust state 2 judicial remedies, a California state prisoner must present the California Supreme Court 3 with a fair opportunity to rule on the merits of every issue raised in his or her federal habeas 4 petition. 28 U.S.C. § 2254 (b), (c); Granberry, 481 U.S. at 133–34. “A petitioner has 5 satisfied the exhaustion requirement if: (1) he has ‘fairly presented’ his federal claim to the 6 highest state court with jurisdiction to consider it, or (2) he demonstrates that no state 7 remedy remains available.” Johnson v. Zenon, 88 F.3d 828, 829 (9th Cir. 1996) (citations 8 omitted). Moreover, to properly exhaust state court remedies a petitioner must allege, in 9 state court, how one or more of his or her federal rights have been violated. For example, 10 “[i]f a habeas petitioner wishes to claim that an evidentiary ruling at a state court trial 11 denied him the due process of law guaranteed by the Fourteenth Amendment, he must say 12 so, not only in federal court, but in state court.” Duncan v. Henry, 513 U.S. 364 , 365–66 13 (1995). 14 The Court additionally cautions Petitioner that under the Antiterrorism and Effective 15 Death Penalty Act of 1996 (“AEDPA”) a one-year period of limitation shall apply to a 16 petition for a writ of habeas corpus by a person in custody pursuant to the judgment of a 17 State court. The limitation period shall run from the latest of: 18 (A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review; — 19 — 20 (B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, — 21 — if the applicant was prevented from filing by such State action; — 22 — (C) the date on which the constitutional right asserted was initially recognized — 23 — by the Supreme Court, if the right has been newly recognized by the Supreme 24 Court and made retroactively applicable to cases on collateral review; or — 25 — (D) the date on which the factual predicate of the claim or claims presented 26 could have been discovered through the exercise of due diligence. — 27 — 28 U.S.C. § 2244 (d)(1)(A)–(D). 28 /// l The statute of limitations does not run while a properly filed state habeas corpus 2 || petition is pending. 28 U.S.C. § 2244 (d)(2); see Nino v. Galaza, 183 F.3d 1003, 1006 (9th 3 || Cir. 1999), but see Artuz v. Bennett, 531 U.S. 4, 8 (2000) (holding that “an application is 4 ‘properly filed’ when its delivery and acceptance [by the appropriate court officer for 5 || placement into the record] are in compliance with the applicable laws and rules governing 6 || filings.”). However, absent some other basis for tolling, the statute of limitations does run 7 || while a federal habeas petition is pending. Duncan v. Walker, 533 U.S. 167 , 181-82 8 |{(2001). 9 CONCLUSION AND ORDER 10 For the reasons discussed above, the Court GRANTS Petitioner’s motion to proceed 11 forma pauperis (Doc. No. 2) and DISMISSES the Petition without prejudice. If 12 Petitioner wishes to proceed with this habeas action, he must, no later than 13 || December 30, 2024, file a First Amended Petition that cures the pleading deficiencies 14 || outlined in the instant Order. The Clerk of Court is directed to mail Petitioner a blank 28 15 || U.S.C. § 2254 Amended Habeas Petition form together with a copy of this Order. 16 IT IS SO ORDERED. 17 || Dated: October 29, 2024 © 18 Hon. Anthony J. attaglia 19 United States District Judge — 20 — — 21 — — 22 — — 23 — — 24 — — 25 — — 26 — — 27 — — 28 —