(HC) Calderon v. State of California

• Court: District Court, E.D. California
• Decided: August 16, 2023
• Docket: 2:23-cv-00956
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 RAUL CALDERON, No. 2:23-cv-00956-CKD P 12 Petitioner, 13 v. ORDER AND 14 STATE OF CALIFORNIA, FINDINGS & RECOMMENDATIONS 15 Respondent. 16 17 Petitioner is a county inmate proceeding pro se in this federal habeas corpus action filed 18 pursuant to 28 U.S.C. § 2254. Under Rule 4 of the Rules Governing Section 2254 Cases, the 19 court must review all petitions for writ of habeas corpus and summarily dismiss any petition if it 20 is plain that the petitioner is not entitled to relief. The court has conducted that review. For the 21 reasons that follow, the undersigned recommends summarily dismissing the federal habeas 22 petition for lack of jurisdiction. 23 I. Petitioner’s 28 U.S.C. § 2254 Application 24 Before the court could screen petitioner’s habeas corpus application docketed on May 22, 25 2023, petitioner filed a first amended § 2254 application. Because the amended petition 26 supersedes the original § 2254 application, the court has conducted its analysis without reference 27 to the original petition. See Local Rule 220. 28 At all times relevant to the allegations in the amended habeas application, petitioner was 1 an inmate at the Rio Consumnes Correctional Center. It is unclear to the court whether petitioner 2 is a pretrial detainee or if he has been convicted of any criminal offense. The amended habeas 3 application mentions various individuals by name who petitioner contends have formed a rogue 4 nation for the purpose of killing him. ECF No. 4 at 6. Some of these individuals are located in 5 North Platte, Nebraska and some are in Sacramento, California. These efforts to harm petitioner 6 have included trying to blind him, cut off his various body parts, starve him, freeze him, give him 7 communicable diseases, and forcibly drugging him. ECF No. 4 at 2. While incarcerated, his mail 8 has been opened, he has been prevented from brushing his teeth and going to the law library, and 9 his phone calls have been tapped. ECF No. 4 at 2. By way of relief, petitioner seeks his 10 immediate release from confinement. Id. at 8. 11 II. Analysis 12 Rule 4 of the Rules Governing Habeas Corpus Cases Under Section 2254 provides for 13 summary dismissal of a habeas petition “[i]f it plainly appears from the face of the petition and 14 any exhibits annexed to it that the petitioner is not entitled to relief in the district court.” In this 15 case, the amended petition does not identify any specific criminal conviction that was obtained in 16 violation of “the Constitution or laws or treaties of the United States” as required by 28 U.S.C. § 17 2254(a). Instead, it appears to complain about the actions of private individuals who are 18 conspiring against petitioner. Even assuming that petitioner is a state pretrial detainee who has 19 not been convicted, federal habeas relief is only available pursuant to 28 U.S.C. § 2241. See 20 McNeely v. Blanas, 336 F.3d 822, 824 n. 1 (9th Cir. 2003) (citing Braden v. Judicial Circuit 21 Court, 410 U.S. 484, 503 (1973) (explaining that § 2241 authorizes district courts to issue the writ 22 of habeas corpus before a judgment is rendered in a state criminal proceeding)). The court 23 declines to construe petitioner’s habeas application as one pursuant to 28 U.S.C. § 2241, however, 24 because it fails to raise any constitutional, statutory, or treaty based claim.1 See 28 U.S.C. § 25

1 The court also declines to exercise its discretion to convert the amended § 2254 petition into a 26 civil rights complaint pursuant to 42 U.S.C. § 1983. See Pinson v. Carvajal, 69 F.4th 1059, 1075- 27 1076 (9th Cir. 2023) (recognizing that “this general principle—that habeas petitions may be converted to civil-rights actions—predates the enactment of the PLRA, which significantly 28 impacted a court's ability to convert a habeas petition into a civil rights action.”). 1 2241(c) (stating that the writ shall not issue unless the pretrial detainee is in custody “in violation 2 of the Constitution or laws or treaties of the United States”). In the instant case, it is plain from 3 the amended § 2254 application that petitioner is not entitled to federal habeas relief. Therefore, 4 the undersigned recommends that the amended petition be summarily dismissed as it contains no 5 constitutional challenge to any state criminal conviction. 6 III. Appointment of Counsel 7 In the amended habeas application, petitioner also requests the appointment of counsel. 8 ECF No. 4 at 9. There currently exists no absolute right to appointment of counsel in habeas 9 proceedings. See Nevius v. Sumner, 105 F.3d 453, 460 (9th Cir. 1996). In the present case, the 10 court denies the request for counsel as moot based on the recommendation to summarily dismiss 11 the amended § 2254 petition. 12 Accordingly, IT IS HEREBY ORDERED that: 13 1. Petitioner’s request for the appointment of counsel is denied as moot based upon the 14 court’s recommendation that the habeas petition be summarily dismissed. 15 2. The Clerk of Court randomly assign this matter to a district court judge. 16 IT IS FURTHER RECOMMENDED that petitioner's application for a writ of habeas 17 corpus be summarily dismissed. 18 These findings and recommendations are submitted to the United States District Judge 19 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 20 after being served with these findings and recommendations, any party may file written 21 objections with the court and serve a copy on all parties. Such a document should be captioned 22 “Objections to Magistrate Judge’s Findings and Recommendations.” In his objections petitioner 23 may address whether a certificate of appealability should issue in the event he files an appeal of 24 the judgment in this case. See Rule 11, Federal Rules Governing Section 2254 Cases (the district 25 court must issue or deny a certificate of appealability when it enters a final order adverse to the 26 applicant). Where, as here, a habeas petition is dismissed on procedural grounds, a certificate of 27 appealability “should issue if the prisoner can show: (1) ‘that jurists of reason would find it 28 debatable whether the district court was correct in its procedural ruling;’ and (2) ‘that jurists of 1 || reason would find it debatable whether the petition states a valid claim of the denial of a 2 | constitutional right.’” Morris v. Woodford, 229 F.3d 775, 780 (9th Cir. 2000) (quoting Slack v. 3 || McDaniel, 529 U.S. 473, 484 (2000)). Any response to the objections shall be served and filed 4 || within fourteen days after service of the objections. The parties are advised that failure to file 5 || objections within the specified time may waive the right to appeal the District Court’s order. 6 || Martinez v. Yist, 951 F.2d 1153 (9th Cir. 1991). 7 | Dated: August 16, 2023 □□ I / dip Ze CAROLYNK. DELANEY 9 UNITED STATES MAGISTRATE JUDGE 10 1] 12 13 14 15 16 || 12/cald0956.156.summ.dismiss 17 18 19 20 21 22 23 24 25 26 27 28