Hernandez v. Gore

[7] 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA [10] 11 SAUL HERNANDEZ, Case No.: 21cv1180 CAB (NLS) 12 Petitioner, ORDER DISMISING CASE 13 v. WITHOUT PREJUDICE 14 WILLIAM GORE, et al., 15 Respondents. [16] 17 Petitioner, who is currently detained at the George F. Bailey Detention Facility and 18 is proceeding pro se, has filed a Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. 19 § 2254 and has paid the $5.00 filing fee. (ECF Nos. 1, 1-2.) For the reasons discussed 20 below, the instant habeas action is DISMISSED without prejudice. 21 FAILURE TO STATE A COGNIZABLE FEDERAL CLAIM 22 The Petition is first subject to dismissal because Petitioner has failed to allege that 23 his state court conviction or sentence violates the Constitution of the United States. 24 Title 28, United States Code, § 2254 (a), sets forth the following scope of review for 25 federal habeas corpus claims: 26 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 [27] custody pursuant to the judgment of a State court only on the ground that he [28] 1 is in custody in violation of the Constitution or laws or treaties of the United States. [3] 28 U.S.C. § 2254 (a). See Hernandez v. Ylst, 930 F.2d 714, 719 (9th Cir. 1991); Mannhalt 4 v. Reed, 847 F.2d 576, 579 (9th Cir. 1988); Kealohapauole v. Shimoda, 800 F.2d 1463 , 5 1464-65 (9th Cir. 1986). Thus, to present a cognizable federal habeas corpus claim under 6 § 2254, a state prisoner must allege both that he is in custody pursuant to a “judgment of a 7 State court,” and that he is in custody in “violation of the Constitution or laws or treaties 8 of the United States.” See 28 U.S.C. § 2254 (a). 9 With respect to the one enumerated claim for relief, Petitioner indicates 10 “Respondents violeted [sic] doctrine of 27 CFR 72.11 (commercial crimes defined) and 11 Black Diamond SS Corp. v. Robert Stewart and Sons, 336 US 384 (1948),” and contends 12 “[c]ommercial liability applies.” (ECF No. 1 at 6.) Petitioner asserts he “tendered/posted 13 financial instrument/Bonds to settle all outstanding liabilities in relation to all charges as 14 was his right as the Beneficiary to said Securities Properties,” that “Respondents were not 15 allowed to keep Beneficiary after bonds posted for settlement,” and “Beneficiary assigns 16 the Judge of Court as trustee and instructs the Court to discharge all civil & criminal debt 17 and Set Beneficiary at liberty.” (See id.) Petitioner indicates the offenses relating to his 18 cases are California Penal Code and Health and Safety Code violations concerning the 19 possession, transportation and/or sale of narcotics/controlled substances, the commission 20 of a felony when on bail or released on recognizance, and ineligibility for probation or 21 suspended sentence due to prior convictions under the Health and Safety Code for 22 possession for sale or sale of substances containing certain levels of methamphetamine. 23 (See id. at 2, citing Cal. Health & Safety Code §§ 11379 (a), 11351, 11352,1 Cal. Penal 24 Code §§ 1203.073(b)(2), 12022.1(b), 1210(a).) [26] 27 1 Petitioner appears to also list one additional section of the California Health and Safety Code on the section of the federal petition form concerning charged offenses, but the cited [28] 1 Petitioner also indicates that his trial court case numbers are CS 315421, CS 316375, 2 and CS 316980, but he has not completed the portions of the petition form concerning 3 conviction or sentencing dates or length of sentence. (Id. at 1-2.) The electronic docket of 4 the San Diego Superior Court, of which the Court takes judicial notice,2 reflects that these 5 three criminal cases were filed on October 1, 2020, December 24, 2020, and February 9, 6 2021, respectively. (See CS 315421, CS 316375, and CS 316980 at 7 http://courtindex.sdcourt.ca.gov/CISPublic/casesearch, last visited June 30, 2021). 8 Because Petitioner fails to indicate he has been convicted and sentenced, Petitioner fails to 9 allege he is in custody pursuant to the judgment of a state court. 10 While Petitioner has not invoked the specific grant of habeas jurisdiction for a person 11 in custody pursuant to a state court judgment under section 2254, section 2241 confers on 12 this Court a general grant of habeas jurisdiction for state prisoners who contend they are 13 “in custody in violation of the Constitution or laws or treaties of the United States.” 28 14 U.S.C. § 2241 (c)(3); see also id. § 2241(a). District courts have jurisdiction under section 15 2241 over federal habeas petitions brought by state court pretrial detainees. See e.g. 16 McNeely v. Blanas, 336 F.3d 822 , 824 n.1 (9th Cir. 2003) (“[B]ecause Petitioner is a 17 pretrial detainee, he is not being held ‘pursuant to the judgment of a State court.’ Therefore, 18 his claim falls under 28 U.S.C. § 2241 .”), quoting 28 U.S.C. § 2254 . As discussed below, 19 while Petitioner may choose to initiate a new habeas action under § 2241 instead of seeking 20 to proceed under § 2254, a § 2241 action also remains subject to an exhaustion requirement. 21 FAILURE TO ALLEGE EXHAUSTION OF STATE JUDICIAL REMEDIES 22 The Petition is also subject to dismissal because Petitioner has not alleged exhaustion 23 of state remedies. Habeas petitioners who wish to challenge either their state court 24 conviction or the length of their confinement in state prison, must first exhaust state judicial [26] 27 2 “[A] court may take judicial notice of its own records in other cases, as well as the records of an inferior court in other cases.” United States v. Wilson, 631 F.2d 118, 119 (9th Cir. [28] 1 remedies. 28 U.S.C. § 2254 (b), (c); Granberry v. Greer, 481 U.S. 129, 133-34 (1987). To 2 exhaust state judicial remedies, a California state prisoner must present the California 3 Supreme Court with a fair opportunity to rule on the merits of every issue raised in his or 4 her federal habeas petition. 28 U.S.C. § 2254 (b), (c); Granberry, 481 U.S. at 133-34 . 5 Ordinarily, to satisfy the exhaustion requirement, a petitioner “‘must fairly present[]’ his 6 federal claim to the highest state court with jurisdiction to consider it, or . . . demonstrate[] 7 that no state remedy remains available. Johnson v. Zenon, 88 F.3d 828, 829 (9th Cir. 1996) 8 (citations omitted). Moreover, to properly exhaust state court remedies a petitioner must 9 allege, in state court, how one or more of his or her federal rights have been violated. For 10 example, “[i]f a habeas petitioner wishes to claim that an evidentiary ruling at a state court 11 trial denied him [or her] the due process of law guaranteed by the Fourteenth Amendment, 12 he [or she] must say so, not only in federal court, but in state court.” Duncan v. Henry, 513 13 U.S. 364, 365-66 (1995) (emphasis added). Petitioner does not allege that he raised his 14 one enumerated claim in the California Supreme Court. (See e.g. ECF No. 1 at 6.) If 15 Petitioner has raised his claim in the California Supreme Court he must so specify. 16 Rule 4 of the Rules Governing Section 2254 Cases provides for summary dismissal 17 of a habeas petition “[i]f it plainly appears from the face of the petition and any attached 18 exhibits that the petitioner is not entitled to relief in the district court . . .” Rule 4, 28 U.S.C. 19 foll. § 2254. Here, it appears plain from the Petition that Petitioner is not presently entitled 20 to federal habeas relief because he has not alleged exhaustion of state court remedies. 21 To the extent Petitioner seeks to proceed under section 2241 rather than section 22 2254, Petitioner is cautioned that section 2241 also has an exhaustion requirement. See 23 e.g. Ward v. Chavez, 678 F.3d 1042, 1045 (9th Cir. 2012); Laing v. Ashcroft, 370 F.3d 994 , 24 997-98 (9th Cir. 2004). 25 Additionally, to the extent Petitioner requests the Court interfere with his ongoing 26 state criminal proceedings, the Court would be compelled to abstain pursuant to Younger 27 v. Harris, 401 U.S. 37 (1971). Under Younger, federal courts may not interfere with 28 ongoing state criminal proceedings absent extraordinary circumstances. Id. at 45-46 ; see 1 || Middlesex County Ethics Comm. v. Garden State Bar Ass’n, 457 U.S. 423, 431 (1982) 2 ||(Younger “espouse[d] a strong federal policy against federal-court interference with 3 || pending state judicial proceedings.”) It is presently unclear whether abstention applies or 4 || whether section 2254 or section 2241 is the proper vehicle for Petitioner’s claim given 5 || Petitioner’s failure to complete significant sections of the petition form, particularly those 6 || concerning conviction date, sentencing date and length of sentence. 7 CONCLUSION AND ORDER 8 For the foregoing reasons, the Petition is DISMISSED without prejudice and with 9 leave to amend. If Petitioner wishes to proceed with a habeas action pursuant to section 10 || 2254, he must, no later than August 31, 2021, file a First Amended Petition that cures the 11 || pleading deficiencies outlined in the instant Order. If Petitioner instead seeks to proceed 12 || with a habeas action pursuant to section 2241, he must file a new habeas action pursuant 13 || to 28 U.S.C. § 2241 which will be given a new civil case number. The Clerk of Court is 14 || directed to mail Petitioner a blank Amended Petition for Writ of Habeas Corpus pursuant 15 || to 28 U.S.C. § 2254 and a blank Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. 16 || § 2241 together with a copy of this Order. 17 || IT IS SO ORDERED. 18 || Dated: July 1, 2021 € Z [19] Hon. Cathy Ann Bencivengo 20 United States District Judge