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5 6 7 UNITED STATES DISTRICT COURT 8 WESTERN DISTRICT OF WASHINGTON AT TACOMA 9 10 TAM TRAN, CASE NO. 3:22-CV-5924-BHS 11 Plaintiff, ORDER DECLINING TO GRANT IN 12 v. FORMA PAUPERIS STATUS 13 CLARK COUNTY COURT, 14 Defendant.
15 Petitioner Tam Tran filed a Declaration and Application to Proceed In Forma Pauperis 16 and Written Consent for Payment of Costs (“Application”). Dkt. 1. The District Court has 17 referred Plaintiffs’ Application to Proceed In Forma Pauperis (“IFP”) to United States 18 Magistrate Judge David W. Christel pursuant to Amended General Order 11-22. 19 Petitioner, proceeding pro se, filed documents with the Court that appear to seek habeas 20 corpus relief (“proposed petition”). See Dkt. 1-1. Having reviewed the proposed petition, the 21 Court declines to grant Petitioner IFP status. The Court, however, provides Petitioner leave to 22 file an amended pleading by January 23, 2023, to cure the deficiencies identified herein. 23 24 1 Standard for Granting Application for IFP. The district court may permit indigent 2 litigants to proceed IFP upon completion of a proper affidavit of indigency. See 28 U.S.C. 3 §1915(a). However, the court has broad discretion in denying an application to proceed IFP. 4 Weller v. Dickson, 314 F.2d 598 (9th Cir. 1963), cert. denied 375 U.S. 845 (1963).
5 Plaintiff’s Application to Proceed IFP. Plaintiff states that he is employed and his net 6 monthly salary is $1,500.00. See Dkt. 1. He has received $18,000.00 over the past twelve months 7 through “business, profession or other self-employment.” Id. Plaintiff has $50.00 cash on hand 8 and $50.00 in his bank accounts. Id. at p. 2. He has no assets. Id. Plaintiff’s monthly expenses are 9 $1,500.00. Id. 10 Sua Sponte Dismissal. The Court has carefully reviewed the proposed petition in this 11 matter. Because Petitioner filed this proposed petition pro se, the Court has construed the 12 pleadings liberally and has afforded Petitioner the benefit of any doubt. See Karim-Panahi v. Los 13 Angeles Police Dep’t, 839 F.2d 621, 623 (9th Cir. 1988). The Court must subject each civil 14 action commenced pursuant to 28 U.S.C. § 1915(a) to mandatory screening and order the sua
15 sponte dismissal of any case that is “frivolous or malicious,” “fails to state a claim on which 16 relief may be granted,” or “seeks monetary relief against a defendant who is immune from such 17 relief.” 28 U.S.C. § 1915(e)(2)(B); see also Calhoun v. Stahl, 254 F.3d 845, 845 (9th Cir. 2001) 18 (“[T]he provisions of 28 U.S.C. § 1915(e)(2)(B) are not limited to prisoners.”); Lopez v. Smith, 19 203 F.3d 1122, 1126–27 (9th Cir. 2000) (en banc) (noting that 28 U.S.C. § 1915(e) “not only 20 permits but requires” the court to sua sponte dismiss an IFP complaint that fails to state a claim). 21 An IFP complaint is frivolous if “it ha[s] no arguable substance in law or fact.” Tripati v. First 22 Nat’l Bank & Trust, 821 F.2d 1368, 1369 (9th Cir. 1987) (citing Rizzo v. Dawson, 778 F.2d 527, 23 529 (9th Cir. 1985); see also Franklin v. Murphy, 745 F.2d 1221, 1228 (9th Cir. 1984).
24 1 Analysis of the Proposed Petition. Under Rule 4 of the Rules Governing § 2254 cases, 2 the Court is required to perform a preliminary review of a habeas petition. The Court should 3 dismiss a habeas petition before the respondent is ordered to file a response, if it “plainly appears 4 from the petition and any attached exhibits that the petitioner is not entitled to relief in the
5 district court.” Rule 4 also applies to habeas petitions brought under § 2241. See Rule 1(b) of the 6 Rules Governing Section 2254 cases (“The district court may apply any and all of these rules to a 7 habeas corpus petition not covered” by 28 U.S.C. § 2254.). 8 Failure to Comply with Rule 2. Petitioner appears to challenge a 2015 Clark County 9 District Court conviction of driving under the influence. Dkt. 1-1. Under Rule 2(a) of the Rules 10 Governing Section 2254 Cases, “the petition must name as respondent the state officer who has 11 custody.” Additionally, 12 [t]he petition must: (1) specify all the grounds for relief available to the petitioner; (2) state the facts supporting each ground; (3) state the relief requested; (4) be printed, 13 typewritten, or legibly handwritten; and (5) be signed under penalty of perjury by the petitioner or person authorized to sign it for the petitioner under 28 U.S.C. §2242. 14 Rules Governing Section 2254 Cases Rule 2(c). The Petition must “substantially follow” a form 15 prescribed by the local district court or the form attached to the Rules Governing Section 2254 16 Cases. Id. at Rule 2(d). 17 Here, the Petition does not comply with the Rules Governing Section 2254 Cases. 18 Petitioner has failed to name the state officer who has custody over Petitioner; state the relief 19 requested; and sign the Petition under penalty of perjury. He also did not substantially follow this 20 Court’s § 2254 form. Finally, based on Petitioner’s filing of additional habeas cases, it is not clear 21 22 23 24 1 the Petition contains all the grounds for relief Petitioner is seeking.1 For these reasons, the Petition 2 is defective and the Court will not direct Respondent to answer. 3 In Custody Requirement. The Court also finds that, based on the information contained in 4 the Petition, it appears Petitioner does not meet the “in custody” requirements. “The federal
5 habeas statute gives the United States district courts jurisdiction to entertain petitions for habeas 6 relief only from persons who are ‘in custody in violation of the Constitution or laws or treaties of 7 the United States.’” Maleng v. Cook, 490 U.S. 488, 490 (1989) (quoting 28 U.S.C. § 2247(c)(3)). 8 A petitioner must be “in custody” under the conviction or sentence under attack when he files his 9 federal petition. Id. at 490-91. The “in custody” requirement is met when a petitioner “is subject 10 to a significant restraint upon his liberty ‘not shared by the public generally.’” Wilson v. 11 Belleque, 554 F.3d 816, 822 (9th Cir.2009) (quoting Jones v. Cunningham, 371 U.S. 236, 240 12 (1963)). When the conviction or sentence under attack has fully expired at the time the petition is 13 filed, the petitioner does not meet the “in custody” requirement. Maleng, 490 U.S.
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5 6 7 UNITED STATES DISTRICT COURT 8 WESTERN DISTRICT OF WASHINGTON AT TACOMA 9 10 TAM TRAN, CASE NO. 3:22-CV-5924-BHS 11 Plaintiff, ORDER DECLINING TO GRANT IN 12 v. FORMA PAUPERIS STATUS 13 CLARK COUNTY COURT, 14 Defendant.
15 Petitioner Tam Tran filed a Declaration and Application to Proceed In Forma Pauperis 16 and Written Consent for Payment of Costs (“Application”). Dkt. 1. The District Court has 17 referred Plaintiffs’ Application to Proceed In Forma Pauperis (“IFP”) to United States 18 Magistrate Judge David W. Christel pursuant to Amended General Order 11-22. 19 Petitioner, proceeding pro se, filed documents with the Court that appear to seek habeas 20 corpus relief (“proposed petition”). See Dkt. 1-1. Having reviewed the proposed petition, the 21 Court declines to grant Petitioner IFP status. The Court, however, provides Petitioner leave to 22 file an amended pleading by January 23, 2023, to cure the deficiencies identified herein. 23 24 1 Standard for Granting Application for IFP. The district court may permit indigent 2 litigants to proceed IFP upon completion of a proper affidavit of indigency. See 28 U.S.C. 3 §1915(a). However, the court has broad discretion in denying an application to proceed IFP. 4 Weller v. Dickson, 314 F.2d 598 (9th Cir. 1963), cert. denied 375 U.S. 845 (1963).
5 Plaintiff’s Application to Proceed IFP. Plaintiff states that he is employed and his net 6 monthly salary is $1,500.00. See Dkt. 1. He has received $18,000.00 over the past twelve months 7 through “business, profession or other self-employment.” Id. Plaintiff has $50.00 cash on hand 8 and $50.00 in his bank accounts. Id. at p. 2. He has no assets. Id. Plaintiff’s monthly expenses are 9 $1,500.00. Id. 10 Sua Sponte Dismissal. The Court has carefully reviewed the proposed petition in this 11 matter. Because Petitioner filed this proposed petition pro se, the Court has construed the 12 pleadings liberally and has afforded Petitioner the benefit of any doubt. See Karim-Panahi v. Los 13 Angeles Police Dep’t, 839 F.2d 621, 623 (9th Cir. 1988). The Court must subject each civil 14 action commenced pursuant to 28 U.S.C. § 1915(a) to mandatory screening and order the sua
15 sponte dismissal of any case that is “frivolous or malicious,” “fails to state a claim on which 16 relief may be granted,” or “seeks monetary relief against a defendant who is immune from such 17 relief.” 28 U.S.C. § 1915(e)(2)(B); see also Calhoun v. Stahl, 254 F.3d 845, 845 (9th Cir. 2001) 18 (“[T]he provisions of 28 U.S.C. § 1915(e)(2)(B) are not limited to prisoners.”); Lopez v. Smith, 19 203 F.3d 1122, 1126–27 (9th Cir. 2000) (en banc) (noting that 28 U.S.C. § 1915(e) “not only 20 permits but requires” the court to sua sponte dismiss an IFP complaint that fails to state a claim). 21 An IFP complaint is frivolous if “it ha[s] no arguable substance in law or fact.” Tripati v. First 22 Nat’l Bank & Trust, 821 F.2d 1368, 1369 (9th Cir. 1987) (citing Rizzo v. Dawson, 778 F.2d 527, 23 529 (9th Cir. 1985); see also Franklin v. Murphy, 745 F.2d 1221, 1228 (9th Cir. 1984).
24 1 Analysis of the Proposed Petition. Under Rule 4 of the Rules Governing § 2254 cases, 2 the Court is required to perform a preliminary review of a habeas petition. The Court should 3 dismiss a habeas petition before the respondent is ordered to file a response, if it “plainly appears 4 from the petition and any attached exhibits that the petitioner is not entitled to relief in the
5 district court.” Rule 4 also applies to habeas petitions brought under § 2241. See Rule 1(b) of the 6 Rules Governing Section 2254 cases (“The district court may apply any and all of these rules to a 7 habeas corpus petition not covered” by 28 U.S.C. § 2254.). 8 Failure to Comply with Rule 2. Petitioner appears to challenge a 2015 Clark County 9 District Court conviction of driving under the influence. Dkt. 1-1. Under Rule 2(a) of the Rules 10 Governing Section 2254 Cases, “the petition must name as respondent the state officer who has 11 custody.” Additionally, 12 [t]he petition must: (1) specify all the grounds for relief available to the petitioner; (2) state the facts supporting each ground; (3) state the relief requested; (4) be printed, 13 typewritten, or legibly handwritten; and (5) be signed under penalty of perjury by the petitioner or person authorized to sign it for the petitioner under 28 U.S.C. §2242. 14 Rules Governing Section 2254 Cases Rule 2(c). The Petition must “substantially follow” a form 15 prescribed by the local district court or the form attached to the Rules Governing Section 2254 16 Cases. Id. at Rule 2(d). 17 Here, the Petition does not comply with the Rules Governing Section 2254 Cases. 18 Petitioner has failed to name the state officer who has custody over Petitioner; state the relief 19 requested; and sign the Petition under penalty of perjury. He also did not substantially follow this 20 Court’s § 2254 form. Finally, based on Petitioner’s filing of additional habeas cases, it is not clear 21 22 23 24 1 the Petition contains all the grounds for relief Petitioner is seeking.1 For these reasons, the Petition 2 is defective and the Court will not direct Respondent to answer. 3 In Custody Requirement. The Court also finds that, based on the information contained in 4 the Petition, it appears Petitioner does not meet the “in custody” requirements. “The federal
5 habeas statute gives the United States district courts jurisdiction to entertain petitions for habeas 6 relief only from persons who are ‘in custody in violation of the Constitution or laws or treaties of 7 the United States.’” Maleng v. Cook, 490 U.S. 488, 490 (1989) (quoting 28 U.S.C. § 2247(c)(3)). 8 A petitioner must be “in custody” under the conviction or sentence under attack when he files his 9 federal petition. Id. at 490-91. The “in custody” requirement is met when a petitioner “is subject 10 to a significant restraint upon his liberty ‘not shared by the public generally.’” Wilson v. 11 Belleque, 554 F.3d 816, 822 (9th Cir.2009) (quoting Jones v. Cunningham, 371 U.S. 236, 240 12 (1963)). When the conviction or sentence under attack has fully expired at the time the petition is 13 filed, the petitioner does not meet the “in custody” requirement. Maleng, 490 U.S. at 492. 14 Further, a petitioner is not “in custody” under a conviction after the sentence imposed has fully
15 expired merely because the prior conviction could be used to enhance a sentence imposed for 16 a future conviction. Id. at 493; see also Lackawanna County Dist. Attorney v. Coss, 532 U.S. 17 394, 403-04 (2001). The petitioner bears the burden of establishing the Court has subject matter 18 jurisdiction. See Dow v. Circuit Court of the First Circuit, 995 F.2d 922, 923 (9th Cir. 1993). 19 Here, Petitioner was sentenced a total of 364 days of jail with a suspended sentence for a 20 period of three years and probation for 60 months. See Dkt. 1-1. Therefore, if Petitioner served 21 his entire sentence he would no longer be “in custody” by July of 2021. Petitioner did not file the 22
23 1 Petitioner has filed four separate habeas petitions challenging the same underlying conviction and sentence that he challenges in this case. See Tran v. Osler, 3:22-CV-5923-JCC; Tran v. Clark County Court, 3:22- 24 CV-5924-BHS; Tran v. Clark County Court, 3:22-CV-5925-BHS. 1 proposed petition until November 28, 2022, more than one year after the possible date he would 2 have been “in custody” for the state conviction. See Dkt. 1-1. Therefore, based on the proposed 3 petition, Petitioner does not meet the “in custody” requirement. Accordingly, Petitioner must 4 show cause why the proposed petition should not be dismissed for lack of subject matter
5 jurisdiction. 6 Timeliness. Pursuant to the Antiterrorism and Effective Death Penalty Act (“AEDPA”), 7 which is codified at 28 U.S.C. § 2241 et seq., a one-year statute of limitations applies to federal 8 habeas petitions. Section 2244(d)(1)(A) requires a prisoner to file a habeas petition within one 9 year of “the date on which the [state court] judgment [of conviction] became final by the 10 conclusion of direct review or the expiration of the time for seeking such review.” If during the 11 limitations period a “properly filed application for state post-conviction or other collateral review 12 . . . is pending,” the one-year period is tolled. 28 U.S.C. § 2244(d)(2); see Pace v. DiGulielmo, 13 544 U.S. 480, 410 (2005). Here, Petitioner’s judgment and sentence was entered July 7, 2015. 14 Dkt. 1-1. Petitioner’s state personal restraint petition was dismissed in October 2016. See id.
15 Based on the record before the Court, the proposed petition is barred by the statute of limitations. 16 Accordingly, Petitioner must also show cause why this case should not be dismissed as barred by 17 the statute of limitations. 18 Duplicative Cases. Petitioner has filed four separate habeas petitions challenging the 19 same underlying conviction and sentence that he challenges in this case. See Tran v. Osler, 3:22- 20 CV-5923-JCC; Tran v. Clark County Court, 3:22-CV-5924-BHS; Tran v. Clark County Court, 21 3:22-CV-5925-BHS. Petitioner should not file multiple cases challenging the same state 22 conviction and sentence. Therefore, Petitioner is directed to file an amended petition in this case 23
24 1 that includes all grounds for relief arising from the state conviction and sentence challenged in 2 this case. 3 Instructions to Petitioner and the Clerk of Court. If Petitioner intends to pursue this 4 habeas action, he must file an amended petition complying with Rule 2 of the Rules Governing
5 Section 2254 Cases on the form provided by the Court and responding to all deficiencies identified 6 in this Order. The amended petition must be legibly rewritten or retyped in its entirety, it should be 7 an original and not a copy, it should contain the same case number, and it may not incorporate any 8 part of the original proposed petition by reference. The amended petition will act as a complete 9 substitute for the proposed petition, and not as a supplement. The amended petition must also 10 include all claims for relief arising from the underlying state conviction and sentence. 11 If Petitioner fails to adequately address the issues raised herein and file an amended petition 12 on or before January 23, 2023, the undersigned will recommend the Application to Proceed In 13 Forma Pauperis be denied and this case be dismissed. 14 As the Court finds Petitioner has not provided a cognizable habeas petition, the Court
15 declines to rule on the Application and directs the Clerk to re-note the Application to Proceed IFP 16 (Dkt. 1) for January 23, 2023. The Clerk is also directed to provide Petitioner with a copy of this 17 Order and the forms for filing a petition for habeas corpus relief pursuant to 28 U.S.C. § 2254. 18 Dated this 22nd day of December, 2022. 19 A 20 David W. Christel United States Magistrate Judge 21 22 23 24