(HC) Khademi v. Immigration and Naturalization Services

Opinion

1 2 3 4 5 6 7 10 11 DAVOOD KHADEMI, No. 2:23-cv-1884 TLN DB P 12 Petitioner, 13 v. FINDINGS AND RECOMMENDATIONS NATURALIZATION SERVICE, 15 Respondents. 16

17 18 Petitioner, an inmate at the Placer County Jail proceeding pro se, filed a petition for a writ 19 of habeas corpus pursuant to 28 U.S.C. § 2254. Before the court is petitioner’s second amended 20 petition for screening and motion for a stay. For the reasons set forth below, this court 21 recommends the motion for a stay be denied and the second amended petition be dismissed 22 without leave to amend. 24 On screening the initial petition, this court found petitioner failed to state any claims under 25 section 2254 and gave petitioner the opportunity to file an amended petition. (ECF No. 7.) 26 Petitioner first filed a motion to stay these proceedings, apparently pending resolution of a state 27 court case. (ECF No. 8.) Petitioner then filed an amended petition. (ECF No. 9.) On screening 28 the amended petition, it came to the court’s attention that petitioner appeared to be challenging 1 the same conviction(s) he was challenging in another petition he filed in this court: Khademi v. 2 Placer Co. Sheriff, No. 2:23-cv-2122 KJN P. Plaintiff was informed that if he is challenging the 3 same conviction, he should dismiss this case. If he is challenging a different conviction, then he 4 should file a second amended petition in the present case. (ECF No. 10.) On March 4, 2024, 5 petitioner filed a second amended petition. (ECF No. 11.) 7 Rule 4 of the Rules Governing § 2254 Cases requires the court to conduct a preliminary 8 review of each petition for writ of habeas corpus. Pro se habeas corpus petitions are to be 9 liberally construed. Haines v. Kerner, 404 U.S. 519, 520-21 (1972). 10 In his first petition, petitioner identified the respondent as the Immigration and 11 Naturalization Service (“INS”). In the first amended petition, in which petitioner appeared to 12 challenge state court convictions, he identified the People of the State of California. In the 13 second amended petition, petitioner returns to identifying the INS as the respondent. Petitioner 14 does not challenge a conviction in the second amended petition. Rather, petitioner states that he 15 is challenging the “validity” of an “I-94 Visa,” which he had when he legally entered the United 16 States in 2012. Petitioner also states that in 2013 he was the victim of an armed robbery during 17 which all of his identification was stolen. Petitioner is “asking for help for his citizenship and his 18 green card and his passport.” 19 Petitioner’s second amended petition is difficult to interpret. It appears that petitioner 20 may be concerned about his legal status in the United States or his lack of documentation 21 showing he is legally in the United States. According to the Department of Homeland Security 22 website, an I-94 document is given to non-United States citizens upon their admission to the 23 United States. It is proof of legal visitor status.1 24 As this court informed petitioner previously, the purpose of a petition for a writ of habeas 25 corpus under section 2254 is to challenge a state conviction that forms the basis for the 26 petitioner’s custody. 28 U.S.C. §2254(a). Petitioner identified state court convictions in his first 27 two petitions. He did not, and has not, made any allegation that he is being detained at the Jail

28 1 https://i94.cbp.dhs.gov/I94/#/home 1 | under the authority of the INS. Even if he was, the INS is not a state entity and a habeas corpus 2 | petition under section 2254 is not the appropriate vehicle for a challenge to INS actions. 3 This court will recommend petitioner’s second amended petition be dismissed without 4 | leave to amend. Petitioner’s motion to stay this case appears to have been based on his challenge 5 || state court convictions. Because petitioner is no longer challenging those convictions in this case, 6 | the motion should be denied as moot. 7 For the foregoing reasons, IT IS HEREBY RECOMMENDED that: 8 1. Petitioner’s motion to stay (ECF 8) be denied as moot; and 9 2. The second amended petition be dismissed without leave to amend and this case be 10 closed. 11 These findings and recommendations will be submitted to the United States District Judge 12 | assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(). Within fourteen days 13 | after being served with these findings and recommendations, petitioner may file written 14 | objections with the court. The document should be captioned “Objections to Magistrate Judge's 15 | Findings and Recommendations.” Petitioner is advised that failure to file objections within the 16 | specified time may result in waiver of the right to appeal the district court’s order. Martinez v. 17 | Ylst, 951 F.2d 1153 (9th Cir. 1991). In the objections, petitioner may address whether a 18 | certificate of appealability should issue in the event an appeal of the judgment in this case is filed. 19 | See Rule 11, Rules Governing § 2254 Cases (the district court must issue or deny a certificate of 20 || appealability when it enters a final order adverse to the applicant). 21 | Dated: June 13, 2024

23 A ORAH BARNES UNITED STATES MAGISTRATE JUDGE 25 26 27 DLB.:9/DB prisoner inbox/habeas/S/khad1884.SAP scrn 28