1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 STEVEN BRADLEY, No. 1:23-cv-00473-HBK (HC) 12 Petitioner, FINDINGS AND RECOMMENDATIONS TO DISMISS PETITION FOR FAILURE TO 13 v. STATE A CLAIM AND FAILURE TO EXHAUST ADMINISTRATIVE 14 KISHA M. HALL, REMEDIES1 15 Respondent. FOURTEEN-DAY OBJECTION PERIOD 16 (Doc. No. 1) 17 ORDER DIRECTING CLERK OF COURT TO ASSIGN DISTRICT JUDGE 18 19 20 Petitioner Steven Bradley (“Petitioner”), a civil detainee at Coalinga State Hospital, 21 initiated this action by filling a pro se petition for writ of habeas corpus under 28 U.S.C. § on 22 March 28, 2023. (Doc. No. 1, “Petition”). This matter is now before the Court for preliminary 23 review. See Rules Governing § 2254 Cases, Rule 4; 28 U.S.C. § 2243. For the reasons set forth 24 below, the Court recommends that the Petition be DISMISSED without prejudice for failure to 25 state a cognizable habeas claim and lack of jurisdiction. 26 //// 27 1 This matter was referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302 28 (E.D. Cal. 2022). 1 I. BACKGROUND 2 Petitioner asserts “conflict of interest” and “wanton negligence” claims against his court- 3 appointed attorney Kisha M. Hall. (Doc. No. 1 at 1). Petitioner claims Hall has provided false 4 information to the Superior Court on March 20, 2023 during a video-court, refused to provide 5 legal communication regarding Petitioner’s case, and “refused to provide any forms of legal 6 protection under the law.” (Id. at 1-2). Petitioner also requests that the court “remove” Hall from 7 his case. (Id. at 2). Attached to the three-page Petition, is a copy of Petitioner’s “Marsden 8 Motion” dated January 2, 2023, which he apparently filed in the Superior Court requesting that 9 Attorney Hall be removed. (Id. at 5). 10 II. APPLICABLE LAW AND ANALYSIS 11 Rule 4 of the Rules Governing § 2254 Cases requires the Court to make a preliminary 12 review of each petition for writ of habeas corpus. The Court must dismiss a petition “[i]f it 13 plainly appears from the petition . . . that the petitioner is not entitled to relief.” Rule 4 of the 14 Rules Governing § 2254 Cases; see also Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Cir. 1990). 15 The Advisory Committee Notes to Rule 8 indicate that the Court may dismiss a petition for writ 16 of habeas corpus, either on its own motion under Rule 4, pursuant to the respondent’s motion to 17 dismiss, or after an answer to the petition has been filed. Courts have “an active role in 18 summarily disposing of facially defective habeas petitions” under Rule 4. Ross v. Williams, 896 19 F.3d 958, 968 (9th Cir. 2018) (citation omitted). However, a petition for habeas corpus should 20 not be dismissed without leave to amend unless it appears that no tenable claim for relief can be 21 pleaded were such leave granted. Jarvis v. Nelson, 440 F.2d 13, 14 (9th Cir. 1971). 22 A. Failure to Name Proper Respondent – Lack of Jurisdiction 23 A petitioner seeking habeas corpus relief must name the officer having custody of him as 24 the respondent to the petition. Rule 2(a) of the Rules Governing § 2254 Cases; Ortiz-Sandoval v. 25 Gomez, 81 F.3d 891, 894 (9th Cir. 1996); Stanley v. California Supreme Court, 21 F.3d 359, 360 26 (9th Cir. 1994). Normally, the person having custody of an incarcerated petitioner is the warden 27 of the prison in which the petitioner is incarcerated because the warden has "day-to-day control 28 over" the petitioner. Brittingham v. United States, 982 F.2d 378, 379 (9th Cir. 1992); see also 1 Stanley, 21 F.3d at 360. However, the chief officer in charge of penal institutions is also 2 appropriate. Ortiz, 81 F.3d at 894; Stanley, 21 F.3d at 360. Where a petitioner is on probation or 3 parole, the proper respondent is his probation or parole officer and the official in charge of the 4 parole or probation agency or correctional agency. Id. 5 Here, Petitioner names his court-appointed attorney, Hall, as respondent in this action. 6 (See generally Doc. No. 1). Petitioner’s failure to name a proper respondent requires dismissal of 7 his habeas petition for lack of jurisdiction. Stanley, 21 F.3d at 360; Olson v. California Adult 8 Auth., 423 F.2d 1326, 1326 (9th Cir. 1970); see also Billiteri v. United States Bd. Of Parole, 541 9 F.2d 938, 948 (2nd Cir. 1976). In addition, as discussed below, the Petition fails to state a 10 cognizable habeas claim. 11 B. Failure to State a Cognizable Claim 12 The basic scope of habeas corpus is prescribed by statute. Title 28 U.S.C. § 2241(c)(3) 13 provides that the writ of habeas corpus shall not extend to a prisoner unless “[h]e is in custody in 14 violation of the Constitution or laws or treaties of the United States.” The Supreme Court has 15 held that “the essence of habeas corpus is an attack by a person in custody upon the legality of 16 that custody . . .” Preiser v. Rodriguez, 411 U.S. 475, 484 (1973). If a prisoner’s claim “would 17 necessarily demonstrate the invalidity of confinement or its duration,” a habeas petition is the 18 appropriate avenue for the claim. Wilkinson v. Dotson, 544 U.S. 74, 82 (2005 19 Here, it is clear that relief on Petitioner’s claims would not lead to his immediate or earlier 20 release. See Nettles v. Grounds, 830 F.3d 922, 935 (9th Cir. 2016) (if a favorable judgment for 21 the petitioner would not “necessarily lead to his immediate or earlier release from confinement,” a 22 habeas claim is not appropriate). Petitioner does not challenge his conviction or sentence or his 23 current civil commitment. Rather, the gravamen of the Petition consists entirely of Petitioner 24 asserting “conflict of interest” and “wanton negligence” claims against his attorney and seek 25 removal of his court-appointed counsel. (Doc. No. 1 at 6-7). Thus, Petitioner’s “claims” are 26 clearly not cognizable via a petition for writ of habeas corpus. 27 Based on the foregoing, the undersigned recommends Petition be dismissed for failure to 28 state a cognizable claim, as it appears that no tenable claim for relief can be pleaded were such 1 leave granted. 2 III. CERTIFICATE OF APPEALABILITY 3 State prisoners in a habeas corpus action under § 2254 do not have an automatic right to 4 appeal a final order. See 28 U.S.C. § 2253(c)(1)(A); Miller-El v. Cockrell, 537 U.S. 322, 335-36 5 (2003). To appeal, a prisoner must obtain a certificate of appealability. 28 U.S.C. § 2253(c)(2); 6 see also R.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 STEVEN BRADLEY, No. 1:23-cv-00473-HBK (HC) 12 Petitioner, FINDINGS AND RECOMMENDATIONS TO DISMISS PETITION FOR FAILURE TO 13 v. STATE A CLAIM AND FAILURE TO EXHAUST ADMINISTRATIVE 14 KISHA M. HALL, REMEDIES1 15 Respondent. FOURTEEN-DAY OBJECTION PERIOD 16 (Doc. No. 1) 17 ORDER DIRECTING CLERK OF COURT TO ASSIGN DISTRICT JUDGE 18 19 20 Petitioner Steven Bradley (“Petitioner”), a civil detainee at Coalinga State Hospital, 21 initiated this action by filling a pro se petition for writ of habeas corpus under 28 U.S.C. § on 22 March 28, 2023. (Doc. No. 1, “Petition”). This matter is now before the Court for preliminary 23 review. See Rules Governing § 2254 Cases, Rule 4; 28 U.S.C. § 2243. For the reasons set forth 24 below, the Court recommends that the Petition be DISMISSED without prejudice for failure to 25 state a cognizable habeas claim and lack of jurisdiction. 26 //// 27 1 This matter was referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302 28 (E.D. Cal. 2022). 1 I. BACKGROUND 2 Petitioner asserts “conflict of interest” and “wanton negligence” claims against his court- 3 appointed attorney Kisha M. Hall. (Doc. No. 1 at 1). Petitioner claims Hall has provided false 4 information to the Superior Court on March 20, 2023 during a video-court, refused to provide 5 legal communication regarding Petitioner’s case, and “refused to provide any forms of legal 6 protection under the law.” (Id. at 1-2). Petitioner also requests that the court “remove” Hall from 7 his case. (Id. at 2). Attached to the three-page Petition, is a copy of Petitioner’s “Marsden 8 Motion” dated January 2, 2023, which he apparently filed in the Superior Court requesting that 9 Attorney Hall be removed. (Id. at 5). 10 II. APPLICABLE LAW AND ANALYSIS 11 Rule 4 of the Rules Governing § 2254 Cases requires the Court to make a preliminary 12 review of each petition for writ of habeas corpus. The Court must dismiss a petition “[i]f it 13 plainly appears from the petition . . . that the petitioner is not entitled to relief.” Rule 4 of the 14 Rules Governing § 2254 Cases; see also Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Cir. 1990). 15 The Advisory Committee Notes to Rule 8 indicate that the Court may dismiss a petition for writ 16 of habeas corpus, either on its own motion under Rule 4, pursuant to the respondent’s motion to 17 dismiss, or after an answer to the petition has been filed. Courts have “an active role in 18 summarily disposing of facially defective habeas petitions” under Rule 4. Ross v. Williams, 896 19 F.3d 958, 968 (9th Cir. 2018) (citation omitted). However, a petition for habeas corpus should 20 not be dismissed without leave to amend unless it appears that no tenable claim for relief can be 21 pleaded were such leave granted. Jarvis v. Nelson, 440 F.2d 13, 14 (9th Cir. 1971). 22 A. Failure to Name Proper Respondent – Lack of Jurisdiction 23 A petitioner seeking habeas corpus relief must name the officer having custody of him as 24 the respondent to the petition. Rule 2(a) of the Rules Governing § 2254 Cases; Ortiz-Sandoval v. 25 Gomez, 81 F.3d 891, 894 (9th Cir. 1996); Stanley v. California Supreme Court, 21 F.3d 359, 360 26 (9th Cir. 1994). Normally, the person having custody of an incarcerated petitioner is the warden 27 of the prison in which the petitioner is incarcerated because the warden has "day-to-day control 28 over" the petitioner. Brittingham v. United States, 982 F.2d 378, 379 (9th Cir. 1992); see also 1 Stanley, 21 F.3d at 360. However, the chief officer in charge of penal institutions is also 2 appropriate. Ortiz, 81 F.3d at 894; Stanley, 21 F.3d at 360. Where a petitioner is on probation or 3 parole, the proper respondent is his probation or parole officer and the official in charge of the 4 parole or probation agency or correctional agency. Id. 5 Here, Petitioner names his court-appointed attorney, Hall, as respondent in this action. 6 (See generally Doc. No. 1). Petitioner’s failure to name a proper respondent requires dismissal of 7 his habeas petition for lack of jurisdiction. Stanley, 21 F.3d at 360; Olson v. California Adult 8 Auth., 423 F.2d 1326, 1326 (9th Cir. 1970); see also Billiteri v. United States Bd. Of Parole, 541 9 F.2d 938, 948 (2nd Cir. 1976). In addition, as discussed below, the Petition fails to state a 10 cognizable habeas claim. 11 B. Failure to State a Cognizable Claim 12 The basic scope of habeas corpus is prescribed by statute. Title 28 U.S.C. § 2241(c)(3) 13 provides that the writ of habeas corpus shall not extend to a prisoner unless “[h]e is in custody in 14 violation of the Constitution or laws or treaties of the United States.” The Supreme Court has 15 held that “the essence of habeas corpus is an attack by a person in custody upon the legality of 16 that custody . . .” Preiser v. Rodriguez, 411 U.S. 475, 484 (1973). If a prisoner’s claim “would 17 necessarily demonstrate the invalidity of confinement or its duration,” a habeas petition is the 18 appropriate avenue for the claim. Wilkinson v. Dotson, 544 U.S. 74, 82 (2005 19 Here, it is clear that relief on Petitioner’s claims would not lead to his immediate or earlier 20 release. See Nettles v. Grounds, 830 F.3d 922, 935 (9th Cir. 2016) (if a favorable judgment for 21 the petitioner would not “necessarily lead to his immediate or earlier release from confinement,” a 22 habeas claim is not appropriate). Petitioner does not challenge his conviction or sentence or his 23 current civil commitment. Rather, the gravamen of the Petition consists entirely of Petitioner 24 asserting “conflict of interest” and “wanton negligence” claims against his attorney and seek 25 removal of his court-appointed counsel. (Doc. No. 1 at 6-7). Thus, Petitioner’s “claims” are 26 clearly not cognizable via a petition for writ of habeas corpus. 27 Based on the foregoing, the undersigned recommends Petition be dismissed for failure to 28 state a cognizable claim, as it appears that no tenable claim for relief can be pleaded were such 1 leave granted. 2 III. CERTIFICATE OF APPEALABILITY 3 State prisoners in a habeas corpus action under § 2254 do not have an automatic right to 4 appeal a final order. See 28 U.S.C. § 2253(c)(1)(A); Miller-El v. Cockrell, 537 U.S. 322, 335-36 5 (2003). To appeal, a prisoner must obtain a certificate of appealability. 28 U.S.C. § 2253(c)(2); 6 see also R. Governing Section 2254 Cases 11 (requires a district court to issue or deny a 7 certificate of appealability when entering a final order adverse to a petitioner); Ninth Circuit Rule 8 22-1(a); United States v. Asrar, 116 F.3d 1268, 1270 (9th Cir. 1997). Where, as here, the court 9 denies habeas relief on procedural grounds without reaching the merits of the underlying 10 constitutional claims, the court should issue a certificate of appealability only “if jurists of reason 11 would find it debatable whether the petition states a valid claim of the denial of a constitutional 12 right and that jurists of reason would find it debatable whether the district court was correct in its 13 procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). “Where a plain procedural bar 14 is present and the district court is correct to invoke it to dispose of the case, a reasonable jurist 15 could not conclude either that the district court erred in dismissing the petition or that the 16 petitioner should be allowed to proceed further.” Id. Here, reasonable jurists would not find the 17 undersigned’s conclusion debatable or conclude that petitioner should proceed further. The 18 undersigned therefore recommends that a certificate of appealability not issue 19 Accordingly, it is ORDERED: 20 The Clerk of Court is directed shall assign this case to a district judge for the purposes of 21 reviewing these findings and recommendations. 22 Further, it is RECOMMENDED: 23 1. The Petition (Doc. No. 1) be DISMISSED WITHOUT PREJUDICE for failure to state 24 a cognizable claim and lack of jurisdiction. 25 2. Petitioner be denied a certificate of appealability. 26 NOTICE TO PARTIES 27 These findings and recommendations will be submitted to the United States district judge 28 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen (14) 1 | days after being served with these findings and recommendations, a party may file written 2 | objections with the court. The document should be captioned “Objections to Magistrate Judge’s 3 | Findings and Recommendations.” Parties are advised that failure to file objections within the 4 | specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 5 | 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 6 Dated: _ May 1.2023 Mile. Th. Doareh Hack 8 HELENA M. BARCH-KUCHTA 9 UNITED STATES MAGISTRATE JUDGE
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