Jellison v. Sacramento County Sheriffs Office

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 KEVIN S. JELLISON, Case No. 23-cv-00009-HSG

8 Plaintiff, ORDER OF DISMISSAL WITH LEAVE TO AMEND 9 v. Re: Dkt. No. 9 10 SACRAMENTO COUNTY SHERIFFS OFFICE, et al., 11 Defendants. 12 13 Petitioner Kevin S. Jellison has filed this pro se petition for a writ of habeas corpus. The 14 amended petition is before the Court for screening. 15 DISCUSSION 16 A. Standard of Review 17 28 U.S.C. § 2254 provides that this court may entertain a petition for writ of habeas corpus 18 “in behalf of a person in custody pursuant to the judgment of a state court only on the ground that 19 he is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. 20 § 2254(a); Rose v. Hodges, 423 U.S. 19, 21 (1975). 28 U.S.C. § 2241(c) is the proper basis for a 21 habeas petition by a person in state custody who is not held pursuant to the judgment of a State 22 court. See, e.g., Dominguez v. Kernan, 906 F.3d 1127, 1138 (9th Cir. 2018) (pretrial double 23 jeopardy challenge); White v. Lambert, 370 F.3d 1002, 1006 (9th Cir. 2004), overruled on other 24 grounds by Hayward v. Marshall, 603 F.3d 546, 554 (9th Cir. 2010) (en banc) (listing “awaiting 25 extradition” and pretrial detention as examples of when § 2241 applies). A district court shall 26 “award the writ or issue an order directing the respondent to show cause why the writ should not 27 be granted, unless it appears from the application that the applicant or person detained is not 1 B. Procedural History 2 In his initial petition, Petitioner alleged that he is behind held against his will, fraudulently 3 and unjustly, in the custody of the Sacramento County Sheriff’s Department, Sacramento County 4 Jail, Sacramento County Superior Court, Hon. Curtis M. Fiorini, and Napa State Hospital. The 5 initial petition alleged that his custody was unlawful; and sought redress of grievances and the 6 release of commercial debt. See generally ECF No. 1. The Court dismissed the petition with 7 leave to amend because the petition failed to state a claim and because it was unclear what relief 8 was sought. 9 C. Dismissal with Leave to Amend 10 In the amended petition, Petitioner sets forth the following claim for relief: Without a warrant, I was illegally detained and jailed denying my right to remain silent. 11 5th Amendment. I have been falsely identified and imprisoned and charged by public servants without being mirandized properly. My rights were not read to me and due 12 process was violated. 13 ECF No. 9 at 5. Petitioner has not specified why he is in state custody. It does not appear that 14 Petitioner is in custody pursuant to a state court judgment. Petitioner has responded “N/A” to the 15 questions “What sentence are you challenging in this petition” and “For what crime were you 16 given this sentence?” Dkt. No. 9 at 1-2. Petitioner only reports having an arraignment, and does 17 not report any plea or having a trial. Dkt. No. 9 at 2. Petitioner also denies having sought relief in 18 any proceeding other than an appeal. Dkt. No. 9 at 3. 19 The amended petition suffers from numerous deficiencies. 20 First, if Petitioner is not in custody subject to a jury verdict, his Miranda violation claim 21 may not state a cognizable claim for federal habeas relief. Generally speaking, habeas relief 22 should be granted if the admission of statements in violation of Miranda “‘had a substantial and 23 injurious effect or influence in determining the jury’s verdict.’” Jackson v. Giurbino, 364 F.3d 24 1002, 1010 (9th Cir. 2004) (quoting Calderon v. Coleman, 525 U.S. 141, 147 (1998)). Here, it is 25 unclear how the alleged Miranda violation caused Petitioner to be in custody. 26 Second, Petitioner’s claim appears to be unexhausted. Prisoners in state custody who wish 27 to challenge collaterally in federal habeas proceedings either the fact or length of their 1 collateral proceedings, by presenting the highest state court available with a fair opportunity to 2 rule on the merits of each and every claim they seek to raise in federal court. See 28 U.S.C. § 3 2254(b), (c); Rose v. Lundy, 455 U.S. 509, 515-16 (1982). The state’s highest court must be given 4 an opportunity to rule on the claims even if review is discretionary. See O’Sullivan v. Boerckel, 5 526 U.S. 838, 845 (1999) (petitioner must invoke “one complete round of the State’s established 6 appellate review process.”). Here, Petitioner reports that he has not sought relief in any other 7 proceeding. 8 Third, it is unclear why Petitioner has named the Sacramento County Sheriff’s Office as a 9 respondent. Petitioner is currently in the custody of Napa State Hospital. If Petitioner believes 10 that the Sacramento County Sheriff’s Office has violated his federal civil rights, he should raise 11 this claim in a civil rights action pursuant to 42 U.S.C. § 1983. 12 The Court DISMISSES the amended petition with leave to amend to address the identified 13 deficiencies. In filing a second amended petition, Petitioner must specify the reason for his 14 custody, i.e., pursuant to state court judgment or pretrial detention, how his custody violates the 15 Constitution or laws or treaties of the United States, and whether he has exhausted state court 16 remedies. 17 CONCLUSION 18 For the reasons set forth above, the amended habeas corpus petition is DISMISSED with 19 leave to amend. Within twenty-eight (28) days of the date of this order, Petitioner shall file a 20 second amended petition addressing the deficiency identified above. The second amended petition 21 must include the caption and civil case number used in this order (23-cv-0009 HSG) and the 22 words “SECOND AMENDED PETITION” on the first page. Because an amended petition 23 completely replaces the previous petitions, Petitioner must include in his second amended petition 24 all the claims he wishes to present. Any claims not presented in the second amended petition will 25 be waived. Petitioner may not incorporate material from the prior petition(s) by reference. If 26 Petitioner fails to file a second amended petition within the time provided in this order, this action 27 may be dismissed without further notice to Petitioner for failure to prosecute pursuant to Federal 1 41(b) applicable in habeas cases). The Clerk shall send Petitioner two copies of Court’s habeas 2 || petition form. 3 IT IS SO ORDERED. 4 |} Dated: 5/2/2023 5 ° waver S. GILLIAM, JR. / 6 United States District Judge 7 8 9 10 11 a 12

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