Gonzalez v. Warden

[7] 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA [10] 11 MANUEL ANTONIO GONZALEZ, Case No.: 3:20-cv-2538-CAB-RBB 12 Petitioner, ORDER DENYING IN FORMA 13 v. PAUPERIS APPLICATION AND DISMISSING CASE WITHOUT 14 WARDEN, PREJUDICE 15 Respondent. [16] 17 Petitioner, a state prisoner proceeding pro se, has not paid the $5.00 filing fee and 18 has filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 , together 19 with a request to proceed in forma pauperis pursuant to 28 U.S.C. § 1915 (a). 20 APPLICATION TO PROCEED IN FORMA PAUPERIS 21 The request to proceed in forma pauperis is denied because Petitioner has not 22 provided the Court with sufficient information to determine Petitioner’s financial status. 23 A request to proceed in forma pauperis made by a state prisoner must include a certificate 24 from the warden or other appropriate officer showing the amount of money or securities 25 Petitioner has on account in the institution. Rule 3(a)(2), 28 U.S.C. foll. § 2254; Local 26 Rule 3.2. Petitioner has failed to provide the Court with the required Prison Certificate. 27 Therefore, the application to proceed in forma pauperis is DENIED. [28] 1 FAILURE TO EXHAUST CLAIM IN STATE COURT 2 In addition, the Petition must be dismissed because Petitioner has not adequately 3 alleged that he has exhausted his claims to the California Supreme Court. (See ECF No. 1 4 at 5–6.) Habeas petitioners who wish to challenge either their state court conviction or the 5 length of their confinement in state prison, must first exhaust state judicial remedies. 28 6 U.S.C. § 2254 (b), (c); Granberry v. Greer, 481 U.S. 129 , 133–34 (1987). To exhaust 7 state judicial remedies, a California state prisoner must present the California Supreme 8 Court with a fair opportunity to rule on the merits of every issue raised in his or her 9 federal habeas petition. 28 U.S.C. § 2254 (b), (c); Granberry, 481 U.S. at 133-34 . 10 Moreover, to properly exhaust state court remedies a petitioner must allege, in state court, 11 how one or more of his or her federal rights have been violated. The Supreme Court in 12 Duncan v. Henry, 513 U.S. 364 (1995) reasoned: “If state courts are to be given the 13 opportunity to correct alleged violations of prisoners’ federal rights, they must surely be 14 alerted to the fact that the prisoners are asserting claims under the United States 15 Constitution.” Id. at 365–66 (emphasis added). For example, “[i]f a habeas petitioner 16 wishes to claim that an evidentiary ruling at a state court trial denied him [or her] the due 17 process of law guaranteed by the Fourteenth Amendment, he [or she] must say so, not 18 only in federal court, but in state court.” Id. at 366 (emphasis added). 19 Nowhere on the Petition does Petitioner allege that he has exhausted his claim in 20 the California Supreme Court. While Petitioner states he has filed a petition for writ of 21 habeas corpus in the California Supreme Court, he has not alleged to have received a 22 judgment from that court.1 (See ECF No. 1 at 5–6.) “The burden of proving that a claim [24] 25 1 Indeed, a review of the California Supreme Court docket indicates that Petitioner filed a petition for writ of habeas corpus in that court on January 4, 2021, four days after Petitioner filed the instant federal 26 petition. An informal response was ordered by the court and was filed on January 11, 2021. As of the date of his Order, Petitioner’s petition is still pending before the California Supreme Court. (See In re 27 Gonzalez, Case No. S266402, at https://appellatecases.courtinfo.ca.gov/search/case/main CaseScreen.cfm?dist=0&doc_id=2338158&doc_no=S266402&request_token=NiIwLSEmTkw%2BWy [28] 1 has been exhausted lies with the petitioner.” Matthews v. Evatt, 105 F.3d 907, 911 (4th 2 Cir. 1997); see Breard v. Pruett, 134 F.3d 615, 619 (4th Cir. 1998); Lambert v. 3 Blackwell, 134 F.3d 506, 513 (3d Cir. 1997); Oyler v. Allenbrand, 23 F.3d 292, 300 (10th 4 Cir. 1994); Rust v. Zent, 17 F.3d 155, 160 (6th Cir. 1994). Therefore, the Petition must be 5 dismissed for failure to exhaust claims in the California state courts. 6 BASIS FOR PETITION 7 Finally, Petitioner is cautioned that 28 U.S.C. § 2254 may not be the proper vehicle 8 for the claim raised and the relief requested in the Petition. Under 28 U.S.C. § 2254 , 9 prisoners convicted in state court may challenge the constitutional validity or duration of 10 their confinement. See 28 U.S.C. § 2254 (a); Preiser v. Rodriguez, 411 U.S. 475 , 500 11 (1973); Heck v. Humphrey, 512 U.S. 477 , 480–85 (1994). “Section 2254 applies only to 12 collateral attacks on state court judgments.” McGuire v. Blubaum, 376 F. Supp. 284 , 285 13 (D. Ariz. 1974). 14 Here, Petitioner was convicted of attempted murder in 2001, in Los Angeles 15 Superior Court. (See ECF No. 1 at 2.) In his Petition, however, Petitioner does not 16 challenge the constitutionality of his state court conviction. Rather, Petitioner argues he 17 must be released from state custody because his Eighth Amendment rights are being 18 violated by the conditions at R.J. Donovan Correctional Facility (RJD). (Id. at 10–12.) He 19 contends that COVID-19 virus is spreading out of control among the prison population 20 and staff and that prison officials are not taking appropriate action to protect the health of 21 inmates. Petitioner states that he was infected with COVID-19 as a result of the 22 uncontrolled outbreak. (Id. at 10–11.) Petitioner request an “immediate full investigation” 23 into “civil rights violations” related to COVID-19 outbreak in California prisons, 24 including “prison conditions at R.J. Donovan Correctional Facility and hold accountable 25 employees responsible for criminal negligence.” (Id. at 11.) Petitioner “requests [prison 26 / / / 27 / / / 28 / / / 1 officials hire] professional sanitation companies to sanitize [prison] buildings.” (Id.) 2 Finally, Petitioner states he is seeking “immediate release from prison” because the 3 conditions in RJD are so dire that his continued incarceration violates his Eighth 4 Amendment right to be free from cruel and unusual punishment. (Id. at 11–12.) 5 The Court notes that challenges to conditions of confinement, threats to safety or 6 health based on inmate population density, including exposure to the COVID-19 virus, 7 lack of medical testing and medical staff, or unsanitary conditions are properly raised in a 8 civil rights action pursuant to 42 U.S.C. § 1983 . See Preiser, 411 U.S. at 498–99.; 9 Crawford v. Bell, 599 F.2d 890, 891-92 (9th Cir. 1979) (the proper remedy for 10 complaints challenging conditions of confinement is a civil rights action under 42 U.S.C. 11 § 1983). When a state prisoner is challenging the very fact or duration of his physical 12 imprisonment, and the relief he seeks is a determination that he is entitled to immediate 13 release or a speedier release from that imprisonment, his sole federal remedy is a writ of 14 habeas corpus. Id. at 500. Although release from prison is not an available remedy in a 15 civil rights action, other types of injunctive relief are available, such as enjoining 16 unconstitutional conduct or requiring compliance with protective measures.2 17 CONCLUSION 18 Accordingly, the Court DENIES the request to proceed in forma pauperis and 19 DISMISSES the case without prejudice. To have the case reopened, Petitioner must, no 20 later than March 15, 2021: (1) pay the filing fee or provide adequate proof of his 21 inability to pay and (2) file a First Amended Petition which adequately alleges 22 exhaustion of state judicial remedies. For Petitioner’s convenience, the Clerk of Court 23 / / / [25] 26 2 Petitioner should take note, however, that civil rights actions by prisoners are subject to the Prison Litigation Reform Act, which imposes filing fee obligations for prisoners, requires the Court to sua 27 sponte screen civil rights actions, and limits the number of in forma pauperis civil rights actions a prisoner can file. See 28 U.S.C. §§ 1915 (e)(2) and 1915A(b). [28] 1 || shall attach to this Order a blank Application to Proceed in Forma Pauperis and a blank 2 || First Amended Petition form. 3 IT IS SO ORDERED. 4 ||Dated: January 13, 2021 ©; Z [5] Hon. Cathy Ann Bencivengo 6 United States District Judge