Richardson v. Frazier

• Court: District Court, S.D. California
• Decided: January 9, 2023
• Docket: 3:22-cv-01447
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 KEVIN RICHARDSON, Case No.: 22-CV-1447 TWR (AHG)

12 Petitioner, ORDER DISMISSING FIRST 13 v. AMENDED PETITION WITHOUT PREJUDICE 14 FRAZIER, Warden,

15 Respondent. (ECF Nos. 5, 6) 16

17 On September 22, 2022, Petitioner, a state prisoner proceeding pro se, filed a 18 Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (“Pet.,” ECF No. 1). On 19 September 28, 2022, the Court issued an Order dismissing the case without prejudice for 20 failure to satisfy the filing fee requirement. (See generally ECF No. 2.) The Court gave 21 Petitioner until November 10, 2022, either to pay the filing fee or to provide adequate 22 proof of his inability to pay. (See id. at 1–2.) On October 14, 2022, Petitioner paid the 23 $5.00 filing fee. (See generally ECF No. 3.) 24 On October 25, 2022, the Court screened the Petition and dismissed it for failure to 25 state a cognizable claim. (See generally ECF No. 4.) Petitioner was given leave to file 26 an amended petition no later than November 30, 2022. (See id. at 5.) Petitioner filed a 27 First Amended Petition (“FAP,” ECF No. 5) on November 29, 2022, and on 1 First Amended Petition but also contains several attachments, which the Court construes 2 as a Supplement to the First Amended Petition (“Supp.,” ECF No. 6). 3 The First Amended Petition must be dismissed because, as with his original 4 Petition, Petitioner has again failed to state cognizable claim. Section 2254(a) of Title 28 5 of the United States Code sets forth the following scope of review for federal habeas 6 corpus claims: 7 The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an application for a writ of habeas 8 corpus in behalf of a person in custody pursuant to the judgment 9 of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United 10 States. 11 12 28 U.S.C. § 2254(a); see also Hernandez v. Ylst, 930 F.2d 714, 719 (9th Cir. 1991). Thus, 13 to present a cognizable federal habeas corpus claim under § 2254, a state prisoner must 14 allege both that he is in custody pursuant to a “judgment of a State court” and that he is 15 in custody in “violation of the Constitution or laws or treaties of the United States.” See 16 28 U.S.C. § 2254(a). 17 Moreover, a petition for writ of habeas corpus must specify the grounds for relief 18 as well as the facts supporting each ground. See Rule 2(c) of the Rules Governing Section 19 2254 Cases; 28 U.S.C. § 2254. Petitioner must make specific factual allegations that, if 20 true, would entitle him to habeas corpus relief. See United States v. Popoola, 881 F.2d 21 811, 812 (9th Cir. 1989). “A prime purpose of Rule 2(c)’s demand that habeas petitioners 22 plead with particularity is to assist the district court in determining whether the State 23 should be ordered to ‘show cause why the writ should not be granted.’” Mayle v. Felix, 24 545 U.S. 644, 656 (2005) (quoting 28 U.S.C. § 2243). 25 As with was the case with the original Petition, the claims presented in the First 26 Amended Petition are difficult to decipher. The First Amended Petition does not provide 27 a narrative description of Petitioner’s claims and contains little more than a largely 1 instance, Petitioner states as Ground One: “Highest authorities United States executive 2 officers and worldwide authorities (including U.S. Military). Instruments – documents – 3 sovereign immunity.” (See FAP at 6.) The supporting facts for Ground One are also 4 disjointed, stating, in part, “I am held hostage. Contempt of court. Contempt of Congress 5 – Constitutional error. Misprison – misprison of felony – misprison of treason (and 6 sedition).” (See id.) The remaining grounds and supporting facts are similarly vague and, 7 at times, indecipherable. (See id. at 7–9.) 8 The Supplement, which is in large part duplicative of the First Amended Petition, 9 also fails to state coherent claims for relief. It merely repeats the same series of vague 10 phrases and legal terms as those contained in the First Amended Petition. (Compare 11 Supp., with FAP.) While the Supplement also includes photocopies of portions of the 12 U.S. Constitution as attachments, it fails to allege a constitutional error related to any state 13 court conviction Petitioner may have suffered.1 (See generally Supp.) 14 In sum, while the First Amended Petition and its Supplement contain vague 15 references to the U.S. Constitution, neither document contains any comprehensible 16 allegation that Petitioner is “in custody in violation of the Constitution or laws or treaties 17 of the United States.” See 28 U.S.C. § 2254. The lack of intelligible grounds for relief 18 in the First Amended Petition also prevents the Respondent from being able to assert 19 appropriate objections and defenses as required under Rule 2(c). See Popoola, 881 F.2d 20 at 812. Consequently, the First Amended Petition must be dismissed. 21 The Court further notes that Petitioner must exhaust state judicial remedies before 22 bringing his claims via federal habeas. See 28 U.S.C. §§ 2254(b), (c); Granberry v. Greer, 23 24 25 1 The Court notes that Petitioner is currently incarcerated at Northern Nevada Correctional Facility in 26 Carson City, Nevada. (See FAP at 1.) Nowhere in the First Amended Petition or Supplement does Petitioner indicate that he is challenging a California state court conviction (nor does he indicate he is 27 challenging a Nevada conviction). (See generally FAP, Supp.) The Court notes, however, that a petition for writ of habeas corpus must be filed in the United States District Court of either the judicial district in 1 U.S. 129, 133-34 (1987). To exhaust state judicial remedies, a state prisoner must 2 || present the highest state with a fair opportunity to rule on the merits of every issue raised 3 his or her federal habeas petition. See 28 U.S.C. §§ 2254(b), (c); Granberry, 481 U.S. 4 133-34. To properly exhaust state court judicial remedies a petitioner must allege, in 5 court, how one or more of his or her federal rights have been violated.” 6 CONCLUSION 7 Based on the foregoing, the Court DISMISSES WITHOUT PREJUDICE 8 || Petitioner’s First Amended Petition because Petitioner has failed to state a cognizable 9 || federal claim. Because Petitioner is a prisoner proceeding pro se, the Court will give him 0 || one final opportunity to file an amended petition that clearly sets forth cognizable grounds 1 || for relief and specific facts that support those claims no later than February 9, 2023. For 2 ||Petitioner’s convenience, the Clerk of Court SHALL INCLUDE a blank Second 3 || Amended Petition form along with this Order. 4 IT IS SO ORDERED. 5 January 9, 2023 —— f ) 6 J 59) \ (ore 7 Honorable Todd W. Robinson United States District Judge 8 9 0 1 2 3 4 5 6 ? The Court cautions Petitioner that a one-year period of limitation applies to petitions for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. See 28 U.S.C. §§ 2244(d)(1)(A)HD). The statute of 7 || limitations does not run while a properly filed state habeas corpus petition is pending. See 28 U.S.C. § 2244(d)(2); see also Nino v. Galaza, 183 F.3d 1003, 1006 (9th Cir. 1999). Absent some other basis 8 || for tolling, however, the statute of limitations does run while a federal habeas petition is pending. See Duncan v. Walker, 533 U.S. 167, 181-82 (2001).