Richardson v. Frazier

[7] 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA [10] 11 KEVIN RICHARDSON, Case No.: 22-CV-1447 TWR (AHG) 12 Petitioner, ORDER DISMISSING CASE 13 v. WITHOUT PREJUDICE 14 FRAZIER, Warden, 15 Respondent. [16] 17 On September 22, 2022, Petitioner, a state prisoner proceeding pro se, filed a 18 Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (“Pet.,” ECF No. 1). On 19 September 28, 2022, the Court issued an Order dismissing the case without prejudice 20 because Petitioner had failed to satisfy the filing fee requirement. (See generally ECF 21 No. 2.) In its Order, the Court notified Petitioner that to have his case reopened, he must 22 either pay the filing fee or provide adequate proof of his inability to pay no later than 23 November 10, 2022. (See id. at 1–2.) On October 14, 2022, Petitioner paid the $5.00 24 filing fee and the case was reopened. (See ECF No. 3.) 25 The Petition must be dismissed, however, because Petitioner has failed to state a 26 cognizable claim. Title 28, United States Code, § 2254 (a), sets forth the following scope 27 of review for federal habeas corpus claims: 1 The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an application for a writ of habeas [2] corpus on behalf of a person in custody pursuant to the 3 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 [4] United States. [6] 28 U.S.C. § 2254 (a); see also Hernandez v. Ylst, 930 F.2d 714, 719 (9th Cir. 1991); 7 Mannhalt v. Reed, 847 F.2d 576, 579 (9th Cir. 1988); Kealohapauole v. Shimoda, 800 8 F.2d 1463 , 1464-65 (9th Cir. 1986). Accordingly, to present a cognizable federal habeas 9 corpus claim under § 2254, a state prisoner must allege both that he is in custody pursuant 10 to a “judgment of a State court” and that he is in custody in “violation of the Constitution 11 or laws or treaties of the United States.” See 28 U.S.C. § 2254 (a). 12 Here, Petitioner’s claims are difficult to decipher. He states the “highest worldwide 13 authorities issued sovereign and complete governmental immunity – never to be detained 14 arrested charged tried convicted sentenced.” (See Pet. at 6.) The rest of the Petition has 15 a similar tone. (See id. at 6–9.) In no way does Petitioner claim he is “in custody in 16 violation of the Constitution or laws or treaties of the United States.” Cf. 28 U.S.C. 17 § 2254. 18 In addition, Rule 2(c) of the Rules Governing Section 2254 Cases states that the 19 petition “shall set forth in summary form the facts supporting each of the grounds . . . 20 specified [in the petition].” Rule 2(c), 28 U.S.C. foll. § 2254; see also Boehme v. 21 Maxwell, 423 F.2d 1056, 1058 (9th Cir. 1970) (trial court’s dismissal of federal habeas 22 proceeding affirmed where petitioner made conclusory allegations instead of factual 23 allegations showing that he was entitled to relief). Here, Petitioner has violated Rule 2(c) 24 by not only failing to state specific constitutional grounds for relief, but also by failing to 25 provide specific factual allegations to support his attempted legal claims. 26 While courts should liberally interpret pro se pleadings with leniency and 27 understanding, this should not place on the reviewing court the entire onus of ferreting 1 190, 193 (D. Nev. 1993) (finding that courts do not have entire onus of creating federal 2 claim for petitioner). The Court finds that the Petition contains vague and conclusory 3 allegations without any specific grounds or facts in support of relief. A federal court may 4 not entertain a petition that contains allegations that are conclusory. 5 This Court would have to engage in a tenuous analysis to attempt to identify and 6 make sense of the Petition and its attachments. To satisfy Rule 2(c), Petitioner must point 7 to a “real possibility of constitutional error.” Cf. Blackledge v. Allison, 431 U.S. 63 , 75 8 n.7 (1977) (internal quotation marks omitted). Facts must be stated, in the petition, with 9 sufficient detail to enable the Court to determine, from the face of the petition, whether 10 further habeas corpus review is warranted. See Adams v. Armontrout, 897 F.2d 332 , 334 11 (8th Cir. 1990). Moreover, the allegations should be sufficiently specific to permit the 12 respondent to assert appropriate objections and defenses. See Harris v. Allen, 739 13 F. Supp. 564, 565 (W.D. Okla. 1989). Here, the lack of intelligible grounds for relief 14 prevents the Respondent from being able to assert appropriate objections and defenses. 15 Further, the Court notes that Petitioner cannot simply amend his Petition to state a 16 federal habeas claim and then refile the amended petition in this case. He must exhaust 17 state judicial remedies before bringing his claims via federal habeas. State prisoners who 18 wish to challenge their state court conviction must first exhaust state judicial remedies. 19 See 28 U.S.C. §§ 2254 (b), (c); Granberry v. Greer, 481 U.S. 129 , 133–34 (1987). To 20 exhaust state judicial remedies, a California state prisoner must present the California 21 Supreme Court with a fair opportunity to rule on the merits of every issue raised in his or 22 her federal habeas petition. See 28 U.S.C. §§ 2254 (b), (c); Granberry, 481 U.S. at 23 133–34. Further, to properly exhaust state court judicial remedies a petitioner must allege, 24 in state court, how one or more of his or her federal rights have been violated. The 25 Supreme Court in Duncan v. Henry, 513 U.S. 364 (1995), reasoned: “If state courts are 26 to be given the opportunity to correct alleged violations of prisoners’ federal rights, they 27 must surely be alerted to the fact that the prisoners are asserting claims under the United 1 that an evidentiary ruling at a state court trial denied him the due process of law 2 guaranteed by the Fourteenth Amendment, he must say so, not only in federal court, but 3 in state court.” Id. 4 Additionally, the Court cautions Petitioner that, under the Antiterrorism and 5 Effective Death Penalty Act of 1996 (“AEDPA”), a one-year period of limitation shall 6 apply to a petition for a writ of habeas corpus by a person in custody pursuant to the 7 judgment of a State court. The limitation period shall run from the latest of: 8 (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; [9] 10 (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 [11] removed, if the applicant was prevented from filing by such State action; [12] (C) the date on which the constitutional right asserted was initially [13] recognized by the Supreme Court, if the right has been newly recognized by 14 the Supreme Court and made retroactively applicable to cases on collateral review; or [15] 16 (D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence. [18] 28 U.S.C. §§ 2244 (d)(1)(A)–(D). The Court also notes that the statute of limitations does 19 not run while a properly filed state habeas corpus petition is pending. See 28 U.S.C. 20 § 2244(d)(2); see also Nino v. Galaza, 183 F.3d 1003, 1006 (9th Cir. 1999); but see Artuz 21 v. Bennett, 531 U.S. 4, 8 (2000) (“[A]n application is ‘properly filed’ when its delivery 22 and acceptance [by the appropriate court officer for placement into the record] are in 23 compliance with the applicable laws and rules governing filings.”). Absent some other 24 basis for tolling, however, the statute of limitations does run while a federal habeas 25 petition is pending. See Duncan v. Walker, 533 U.S. 167 , 181–82 (2001). 26 / / / 27 / / / 1 CONCLUSION 2 Based on the foregoing, the Court DISMISSES WITHOUT PREJUDICE this 3 || action because Petitioner has failed to state a cognizable federal claim.' To have this case 4 || reopened, Petitioner must, on or before November 30, 2022, file a First Amended Petition 5 || that cures the pleading deficiencies set forth above. 6 IT IS SO ORDERED. 7 ||Dated: October 25, 2022 — f ) 8 J 59) \ (re 9 Honorable Todd W. Robinson United States District Judge [0] ] [3] 4 ——__————c—“ While not entirely clear from the face of the Petition, it appears Petitioner is confined in Nevada and is 6 attempting to challenge a Nevada state court conviction. (See Pet. at 1.) A petition for writ of habeas corpus may be filed in the United States District Court of either the judicial district in which the petitioner 7 |\is presently confined or the judicial district in which he was convicted and sentenced. See 28 U.S.C. § 2241 (d); Braden v. 30th Judicial Cir. Ct., 410 U.S. 484, 497 (1973). Assuming Petitioner is 8 || challenging a Nevada conviction, venue would be proper in the United States District Court for the District of Nevada. See 28 U.S.C. § 108 .