(HC) Drume v. Superior Court of the State of California for the County of Fresno

[7] 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA [10] 11 CHARLES DRUME, ) Case No.: 1:22-cv-00296-AWI-BAK (SKO) (HC) ) 12 Petitioner, ) ORDER DISMISSING PETITION WITH LEAVE ) TO FILE A FIRST AMENDED PETITION 13 v. ) ) [THIRTY-DAY DEADLINE] 14 SUPERIOR COURT OF THE STATE OF ) CALIFORNIA FOR THE COUNTY OF 15 FRESNO, ) ) 16 ) Respondent. ) [17] On February 21, 2022, Petitioner filed a Petition for Writ of Habeas Corpus in the Ninth [18] Circuit Court of Appeals. (Doc. 1.) The Ninth Circuit transferred the petition to this Court on March [19] 14, 2022. (Doc. 2.) A preliminary screening of the petition reveals that the petition fails to name the [20] proper respondent, fails to present any cognizable grounds for relief or any facts in support, and fails [21] to demonstrate exhaustion of state remedies. Therefore, the Court will DISMISS the petition with [22] leave to file an amended petition.1 [23] I. DISCUSSION [24] A. Preliminary Review of Petition [25] Rule 4 of the Rules Governing Section 2254 Cases requires the Court to make a preliminary [27] 28 1 On March 22, 2022, Petitioner filed a motion for “second review.” (Doc. 6.) As the Court conducts a preliminary 1 review of each petition for writ of habeas corpus. The Court must summarily dismiss a petition “[i]f it 2 plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in 3 the district court. . .” Rule 4; O’Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 1990). The Advisory 4 Committee Notes to Rule 8 indicate that the Court may dismiss a petition for writ of habeas corpus, 5 either on its own motion under Rule 4, pursuant to the respondent’s motion to dismiss, or after an 6 answer to the petition has been filed. 7 B. Failure to Name a Proper Respondent 8 Petitioner names the Superior Court of the State of California for the County of Fresno as 9 respondent. A petitioner seeking habeas corpus relief under 28 U.S.C. § 2254 must name the state 10 officer having custody of him as the respondent to the petition. Rule 2(a) of the Rules Governing § 11 2254 Cases; Ortiz-Sandoval v. Gomez, 81 F.3d 891, 894 (9th Cir. 1996); Stanley v. California 12 Supreme Court, 21 F.3d 359, 360 (9th Cir. 1994). Generally, the person having custody of an 13 incarcerated petitioner is the warden of the prison in which the petitioner is incarcerated because the 14 warden has “day-to-day control over” the petitioner. Brittingham v. United States, 982 F.2d 378 , 379 15 (9th Cir. 1992); see also Stanley, 21 F.3d at 360 . However, the chief officer in charge of state penal 16 institutions is also appropriate. Ortiz, 81 F.3d at 894 ; Stanley, 21 F.3d at 360 . Where a petitioner is 17 on probation or parole, the proper respondent is his probation or parole officer and the official in 18 charge of the parole or probation agency or state correctional agency. Id. 19 Petitioner’s failure to name a proper respondent requires dismissal of his habeas petition for 20 lack of jurisdiction. Stanley, 21 F.3d at 360 ; Olson v. California Adult Auth., 423 F.2d 1326 , 1326 21 (9th Cir. 1970); see also Billiteri v. United States Bd. Of Parole, 541 F.2d 938 , 948 (2nd Cir. 1976). 22 However, the Court will give Petitioner the opportunity to cure this defect by amending the petition to 23 name a proper respondent, such as the warden of his facility. See West v. Louisiana, 478 F.2d 1026 , 24 1029 (5th Cir. 1973), vacated in part on other grounds, 510 F.2d 363 (5th Cir. 1975) (en banc) 25 (allowing petitioner to amend petition to name proper respondent); Ashley v. State of Washington, 394 26 F.2d 125 (9th Cir. 1968) (same). In any amended petition, Petitioner must name a proper respondent. 27 C. Failure to State a Cognizable Federal Claim 28 The basic scope of habeas corpus is prescribed by statute. Title 28 U.S.C. § 2254 (a) states: 1 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 a 2 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. [3] 4 (emphasis added). See also Rule 1 to the Rules Governing Section 2254 Cases in the United States 5 District Court. The Supreme Court has held that “the essence of habeas corpus is an attack by a 6 person in custody upon the legality of that custody . . .” Preiser v. Rodriguez, 411 U.S. 475 , 484 7 (1973). 8 To succeed in a petition pursuant to 28 U.S.C. § 2254 , Petitioner must demonstrate that the 9 adjudication of his claim in state court 10 (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United 11 States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. [13] 28 U.S.C. § 2254 (d)(1), (2). In addition to the above, Rule 2(c) of the Rules Governing Section 2254 14 Cases requires that the petition: 15 (1) Specify all the grounds for relief available to the petitioner; (2) State the facts supporting each ground; 16 (3) State the relief requested; (4) Be printed, typewritten, or legibly handwritten; and 17 (5) Be signed under penalty of perjury by the petitioner or by a person authorized to sign it for the petitioner under 28 U.S.C. § 2242 . [18] 19 Petitioner has not complied with Rule 2(c) by failing to specify the grounds for relief or the 20 facts supporting his claims. It appears Petitioner is attempting to raise various claims, such as for 21 ineffective assistance of counsel, prosecutorial misconduct, negligence, and violation of the due 22 process clause and confrontation clause. (See Doc. 1.) Rule 2(c) requires that each ground for relief 23 be clearly stated, along with providing specific factual allegations that support the grounds for relief. 24 O’Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 1990); United States v. Popoola, 881 F.2d 811 , 812 25 (9th Cir. 1989). Petitioner also fails to state how the adjudication of his claims in state court resulted 26 in a decision that was contrary to, or an unreasonable application of, clearly established Supreme 27 Court authority. Therefore, the petition fails to present a cognizable claim for relief and must be 28 dismissed. 1 D. Exhaustion 2 A petitioner who is in state custody and wishes to collaterally challenge his conviction by a 3 petition for writ of habeas corpus must exhaust state judicial remedies. 28 U.S.C. § 2254 (b)(1). The 4 exhaustion doctrine is based on comity to the state court and gives the state court the initial 5 opportunity to correct the state’s alleged constitutional deprivations. Coleman v. Thompson, 501 U.S. 6 722, 731 (1991); Rose v. Lundy, 455 U.S. 509, 518 (1982). 7 A petitioner can satisfy the exhaustion requirement by providing the highest state court with a 8 full and fair opportunity to consider each claim before presenting it to the federal court. Duncan v. 9 Henry, 513 U.S. 364, 365 (1995). A federal court will find that the highest state court was given a full 10 and fair opportunity to hear a claim if the petitioner has presented the highest state court with the 11 claim’s factual and legal basis. Duncan, 513 U.S. at 365 (legal basis); Kenney v. Tamayo-Reyes, 504 12 U.S. 1 , 112 S.Ct. 1715, 1719 (1992) (factual basis). 13 Petitioner fails to indicate for each of his claims whether he has previously raised the issues 14 and provided the highest state court with a full and fair opportunity to consider the claims. If he has 15 not done so, the Court must dismiss the petition. Raspberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir. 16 2006); Jiminez v. Rice, 276 F.3d 478, 481 (9th Cir. 2001). The Court cannot consider a petition that is 17 entirely unexhausted. Rose, 455 U.S. at 521-22 . If in fact Petitioner has fully exhausted his claims, he 18 must so indicate in his amended petition. 19 Petitioner will be granted an opportunity to file a First Amended Petition curing these 20 deficiencies. Petitioner is advised that he should caption his pleading, “First Amended Petition,” and 21 he should reference the instant case number. 22 II. ORDER 23 Based on the foregoing, the Court ORDERS: 24 1) The Petition for Writ of Habeas Corpus is DISMISSED WITHOUT PREJUDICE for 25 failure to name a proper respondent, failure to state a claim, and failure to exhaust state 26 remedies; and 27 2) Petitioner is GRANTED thirty days from the date of service of this order to file a First 28 Amended Petition. 1 Petitioner is forewarned that his failure to comply with this Order may result in an Order of 2 Dismissal or a Recommendation that the petition be dismissed pursuant to Local Rule 110. [3] 4 IT IS SO ORDERED. 5 Dated: May 12, 2022 /s/ Sheila K. Oberto . 6 UNITED STATES MAGISTRATE JUDGE