Garrett v. Superior Court of California, San Diego County Central Division

— 1 — — 2 — — 3 — — 4 — — 5 — — 6 — — 7 — 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA — 10 — 11 FLOYD LINTELLI GARRETT, Case No.: 23-CV-1039 JLS (BGS) 12 Petitioner, ORDER DISMISSING PETITION 13 v. WITHOUT PREJUDICE 14 SUPERIOR COURT OF SAN DIEGO, 15 Respondent. — 16 — 17 On May 30. 2023, Petitioner Floyd Lintelli Garrett (“Petitioner”), a state prisoner 18 proceeding pro se, filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 . 19 See ECF No. 1 (“Pet.”). On June 7, 2023, the Court dismissed the Petition because 20 Petitioner failed to satisfy the filing fee requirement and notified Petitioner that, in order to 21 have his case reopened, he must either pay the $5.00 filing fee or provide adequate proof 22 of his inability to pay no later than July 31, 2023. See ECF No. 2. On July 20, 2023, 23 Petitioner paid the filing fee. See ECF No. 4. For the reasons provided below, the Court 24 now DISMISSES WITHOUT PREJUDICE the Petition. 25 BASIS FOR PETITION 26 In his Petition, Petitioner states his right to a speedy trial has been violated by the 27 Superior Court of San Diego. Pet. at 2. Because Petitioner alleges he is in custody in the 1 proper vehicle to challenge his detention. While Petitioner alleges he is being held in 2 custody in violation of the United States Constitution, he is not currently in custody 3 pursuant to a judgment of a state court. As the Ninth Circuit has stated: 4 Section 2254 is properly understood as “in effect implement[ing] the general grant of habeas corpus authority found in § 2241 as long as the person is in — 5 — custody pursuant to the judgment of a state court, and not in state custody for 6 some other reason, such as pre-conviction custody, custody awaiting extradition, or other forms of custody that are possible without a conviction.” — 7 — [citations omitted.] — 8 — 9 White v. Lambert, 370 F.3d 1002, 1006 (9th Cir. 2004) (quoting Walker v. O’Brien, 216 10 F.3d 626 , 633 (7th Cir. 2000)) (emphasis omitted). Accordingly, if Petitioner seeks to 11 challenge the constitutionality of his pre-trial detention, he must file a petition for writ of 12 habeas corpus pursuant to 28 U.S.C. § 2241 , not 28 U.S.C. § 2254 . 13 FAILURE TO NAME A PROPER RESPONDENT 14 Moreover, Petitioner has failed to name a proper respondent. The federal habeas 15 statute provides that the proper respondent to a habeas petition is “the person who has 16 custody over [the petitioner].” 28 U.S.C. § 2242 ; see also id. § 2243 (“The writ, or order 17 to show cause shall be directed to the person having custody of the person detained.”). The 18 respondent to a given prisoner’s habeas petition is the custodian, or “the person” with the 19 ability to produce the prisoner’s body before the habeas court. Rumsfeld v. Padilla, 542 20 U.S. 426 , 434–35 (2004). Here, Petitioner improperly names the “San Diego Superior 21 Court” as Respondent. Pet. at 1. In order to proceed on federal habeas, whether pursuant 22 to § 2254 or § 2241, Petitioner must name as Respondent the official in charge of the 23 facility in which he is currently confined. See 28 U.S.C. § 2242 . 24 FAILURE TO ALLEGE EXHAUSTION OF STATE JUDICIAL REMEDIES 25 Finally, the Court notes that Petitioner has not clearly alleged exhaustion of state 26 judicial remedies. Although there is no exhaustion requirement mandated by 28 U.S.C. 27 § 2241(c)(3), courts have held exhaustion is necessary as a matter of comity unless special Montana, 626 F.2d 82, 83-84 (9th Cir. 1980); see Younger v. Harris, 401 U.S. 37 (1971). Nowhere in the Petition does Petitioner allege that he raised his speedy trial claim in the California Supreme Court. If Petitioner has raised his claims in the California Supreme Court, he must so specify. “The burden of proving that a claim has been exhausted lies with the petitioner.” Matthews v. Evatt, 105 F.3d 907, 911 (4th Cir. 1997); see Breard v. Pruett, 134 F.3d 615, 619 (4th Cir. 1998); Lambert v. Blackwell, 134 F.3d 506, 513 (3d Cir. 1997); Oyler v. Allenbrand, 23 F.3d 292, 300 (10th Cir. 1994); Rust v. Zent, 17 F.3d 155, 160 (6th Cir. 1994). CONCUSION For the reasons discussed above, the Court DISMISSES the Petition WITHOUT PREJUDICE. For Petitioner’s convenience, the Clerk of Court SHALL INCLUDE a blank form Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 along with this Order. As this concludes the litigation in this matter, the Clerk of the Court SHALL CLOSE the file. IT IS SO ORDERED. Dated: July 27, 2023 Lt f te on. Janis L. Sammartino United States District Judge