(HC) Zinman v. Macomber

Opinion

JUSTIN MARCUS ZINMAN, Case No. 2:23-cv-02404-JDP (HC) Petitioner, ORDER v. GRANTING PETITIONER’S MOTION FOR EXTENSION OF TIME, DENYING JEFF MACOMBER, HIS MOTION TO FILE THE AMENDED PETITION IN OFFICIAL CAPACITY, Respondent. DIRECTING THE CLERK OF COURT TO ASSIGN A DISTRICT JUDGE TO THIS CASE, AND GRANTING LEAVE TO AMEND THE PETITION ECF Nos. 14 & 15 FINDINGS AND RECOMMENDATIONS DENYING PETITIONER’S MOTION FOR ECF No. 9 OBJECTIONS DUE WITHIN FOURTEEN DAYS Petitioner, a state prisoner, brings this action under section 2254, challenging his state conviction and arguing, inter alia, that California Penal Code section 422 is unconstitutional. ECF No. 13 at 5. The petition is, as explained below, non-cognizable and inadequate to proceed past screening. I will give petitioner a final opportunity to amend before recommending that this action be dismissed. In so doing, I will grant his motion for extension of time, ECF No. 15, and deny his motion to bring this or any other amended petition in an “official” capacity, ECF No. 14. Finally, I recommend that petitioner’s motion for summary judgment be denied without prejudice as premature. Analysis The petition is before me for preliminary review under Rule 4 of the Rules Governing Section 2254 Cases. Under Rule 4, the judge assigned to the habeas proceeding must examine the habeas petition and order a response unless it “plainly appears” that the petitioner is not entitled to relief. See Valdez v. Montgomery, 918 F.3d 687, 693 (9th Cir. 2019); Boyd v. Thompson, 147 F.3d 1124, 1127 (9th Cir. 1998). As noted above, petitioner has filed an amended petition, ECF No. 13, alongside two motions, one for an extension of time, ECF No. 15, and one seeking to bring the petition in an “official capacity,” ECF No. 14. His motion of extension of time, which I interpret to apply to the already filed amended petition, is granted, and his petition is deemed timely. I decline, however, to grant his motion to file the petition in his “official” capacity. ECF No. 14. Petitioner argues that he should be allowed to bring this action as an active “Government Relations” officer “doing business as American Media Intelligence.” Id. at 2. A non-attorney cannot litigate on behalf of another and, at a more fundamental level, petitioner’s attempt to distinguish between his personal capacity and his position as a “Government Relations” officer is irrelevant to this action.1 It was petitioner who was convicted in state court, not “American Media Intelligence.” And petitioner’s attempts to confuse the distinction between his own actions and those of “American Media Intelligence” contribute in large part to the inadequacy of his petition. In one section, he asserts that he was “tasked with interpreting and executing laws of the United States so as to regulate policy and to advance United States interests by military or diplomatic action . . . .” ECF No. 13 at 5. Elsewhere he argues that he has been “engaging in business operations/investigating public corruption since being officially activated . . . .” Id. at 6. These 1 Johns v. Cty. of San Diego, 114 F.3d 874, 876 (9th Cir. 1997) (“[A] non-lawyer has no authority to appear as an attorney for others.”). arguments serve only to obscure the substance of his petition. And his “substantive” arguments attacking the constitutionality of Californian Penal Code 422 are hopelessly convoluted. Rather than attempt to cite case law or speeches, he should explain, in simple terms, why he believes this section of the California penal code runs afoul of the constitution. I will grant petitioner one final opportunity to amend. He should explain, in simple and straightforward language, the circumstances surrounding his conviction and why it violated federal law. In light of the faults of the petition, I necessarily recommend denial of petitioner’s motion for summary judgment. Petitioner can refile his motion when and if respondent is served. See Est. of Ketschau v. Progressive Direct Ins. Co., NO. C23-1676JLR, 2024 U.S. Dist. LEXIS 50403, *4 (W.D. Wash. Mar. 19, 2024) (“It is wholly inappropriate to rule on summary judgment before service of the complaint, as [defendant] has neither received notice of nor had an opportunity to defend in this action.”). Accordingly, it is ORDERED that: 1. Petitioner may file an amended petition within thirty days of this order’s entry. If he fails to do so, I will recommend that this action be dismissed. 2. The Clerk of Court is directed to send petitioner a section 2254 habeas form with this order. 3. The Clerk of Court is directed to assign a district judge to this action. 4. Petitioner’s motion for extension of time, ECF No. 15, is GRANTED, and his motion to file his petition in official capacity, ECF No. 14, is DENIED. Further, it is RECOMMENDED that petitioner’s motion for summary judgment, ECF No. 9, be DENIED without prejudice as premature. These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the objections shall be served and filed within fourteen days after service of the objections. The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court’s order. Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Yist, 951 F.2d 1153 (9th Cir. 1991).

Dated: _ June 27, 2024 Q_———— JEREMY D. PETERSON UNITED STATES MAGISTRATE JUDGE