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UNITED STATES DISTRICT COURT

7 8 CENTRAL DISTRICT OF CALIFORNIA 9 WESTERN DIVISION 10 ALFRED ERIC CARAFFA, ) Case No. 2:24-cv-01883-JFW (DTB) ) 11 ) Petitioner, ) 12 ) v. ) ORDER TO SHOW CAUSE RE 13 ) DISMISSAL RYAN THORNELL, et al, ) 14 ) ) 15 Respondent. ) ) 16 ) ) 17

18 I. 19

PROCEEDINGS

20 On February 22, 2024, Petitioner Alfred Eric Caraffa (“Petitioner”) filed a 21 Petition for Writ of Habeas Corpus by a Person in State Custody pursuant to 28 22 U.S.C. § 2254 (“Petition”), in the United States District Court for the District of 23 Arizona. (Docket No. 1). The Petition names as respondents the following: Ryan 24 25 Thornell, the Director of the State of Arizona Department of Corrections; the State 26 of Arizona; the Attorney General for the State of California; and the County of Los 27 Angeles. (Petition at 1). Because the Petition challenges Petitioner’s November 27, 28 2018 felony conviction for violating Cal. Pen. Code § 21310, carrying a concealed 1 dirk or dagger, in Los Angeles County Superior Court, Case No. LA089450-001 2 (“California Conviction”) (Petition at 3),1 on March 5, 2024, the matter was 3 transferred to this Court. (Docket No. 4). As a result of the California Conviction, 4 Petitioner was sentenced to 365 days custody in county jail with 54 days credit and 5 was placed on probation for three years. (Petition at 15-17, 19-22, 26-28). 6 Although the Petition challenges the California Conviction, Petitioner is 7 presently in the custody of the State of Arizona, serving a state prison sentence as 8 the result of a conviction in Maricopa County Superior Court for armed robbery. 9 (Petition at 31-32, Sentencing Order, Superior Court of Arizona, County of 10 Maricopa, Case No. CR 2019-155732-001 DT (“Arizona Conviction”)). As a result 11 of the Arizona Conviction, on October 1, 2021, Petitioner was sentenced to a 12 maximum term of 16 years in prison. (Petition at 32-33). Although Petitioner 13 includes his current custodian and the State of Arizona as respondents, the instant 14 Petition does not attack or otherwise challenge the Arizona Conviction, but appears 15 to only challenge the California Conviction, which was apparently considered by the 16 Maricopa County Superior Court for purposes of his current sentence (see, e.g. 17 Petition at 31). 18 / / / 19 / / / 20 / / / 21 / / / 22 / / / 23 24

25 1 The Petition, including the attachments, is 134 pages in length. The pages of these 26 documents are not consecutively numbered from the first page as required by Local Rule 11-3.3. For convenience and clarity, the Court has consecutively numbered the pages of the Petition to 27 correspond with the electronic pagination provided by the Court’s CM/EFC docketing system. 28 1 Pursuant to Rule 4 of the Rules Governing Section 2254 Cases in the United 2 States District Courts (“Habeas Rules”), the Court has reviewed the Petition for 3 purposes of determining whether it “plainly appears” from the face of the Petition 4 that Petitioner is not entitled to habeas relief. The Court finds that the Petition suffers 5 from several deficiencies, and hereby orders Petitioner to show cause as to why this 6 action should not be dismissed for the reasons set forth herein. 7 II. 8 PETITIONER’S CLAIMS 9 The Petition is submitted on a Section 2254 form petition from the District of 10 Arizona, which Petitioner has modified by striking the word “Arizona” and 11 interlineating “California” in its place.2 (See Petition at 1). The first three claims 12 relate to Petitioner’s California Conviction, while the fourth claim appears to relate 13 to prior proceedings in the instant action in the United States District Court for the 14 District of Arizona. 15 In Ground One of the Petition, Petitioner claims that his due process rights 16 under the Fourteenth Amendment were violated in the proceedings related to his 17 California Conviction on the basis that the charging document was defective. 18 Specifically, Petitioner alleges that page four of the felony complaint in Los Angeles 19 Superior Court Case No. LA089450 “is unsigned by anyone with authority of any 20 court in the entire state of California,” that the document lacks a docket number, and 21 that no time or date is listed for his arraignment in the matter. (Petition at 6). 22 / / / 23 / / / 24 25 / / / 26

27 2 Central District of California Local Rule 83-16.1 requires that a petition for a writ of habeas corpus or a motion filed pursuant to 28 U.S.C. § 2255 shall be submitted on the forms approved 28 and supplied by the Court. 1 In Ground Two, Petitioner alleges a violation of his rights under the Eighth 2 Amendment in relation to the proceedings pertaining to the California Conviction 3 on the basis that he was held in custody for 16 days without bail prior to his 4 preliminary hearing on November 16, 2018. (Petition at 7). In a related claim in 5 Ground Three, Petitioner alleges a violation of the Eighth Amendment in relation to 6 the proceedings pertaining to the California Conviction, claiming that he was 7 unlawfully held in custody from November 1, 2018 until November 16, 2018. 8 (Petition at 8). 9 In Ground Four, Petitioner raises a Fifth Amendment claim against United 10 States District Judge Michael T. Liburdi of the District of Arizona, apparently on the 11 basis that Judge Liburdi improperly granted in forma pauperis status to Petitioner 12 and dismissed his previous federal habeas petition after denying Petitioner’s motion 13 to transfer the Petition to the proper court. (Petition at 9). 14

III.

15

DISCUSSION

16 A. The Court Appears to Lack Habeas Jurisdiction for Purposes of 17 Petitioner’s Challenge to the California Conviction. 18 Pursuant to 28 U.S.C. § 2254(a), a federal court “shall entertain an application 19 for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment 20 of a state court only on the ground that he is in custody of the Constitution or laws 21 or treaties of the United States.” Thus, in order to seek habeas relief, a petitioner 22 must be “in custody” pursuant to a state court judgment of conviction. See Maleng 23 v. Cook, 490 U.S. 488, 490-91 (1989) (per curiam). The “in custody” requirement 24 25 is jurisdictional, and “requir[es] that the habeas Petitioner be ‘in custody’ under the 26 conviction or sentence under attack at the time his petition is filed.” Cook, 490 U.S. 27 at 490-91; Munoz v. Smith, 17 F.4th 1237, 1240 (9th Cir. 2021); Bailey v. Hill, 599 28 F.3d 976, 978-79 (9th Cir. 2010). This is because the writ of habeas corpus functions 1 primarily to secure immediate release from illegal physical custody. Preiser v. 2 Rodriguez, 411 U.S. 475, 484 (1973); Dominguez v. Kernan, 906 F.3d 1127, 1137 3 (9th Cir. 2018) (“‘[T]he essence of habeas corpus is an attack by a person in custody 4 upon the legality of that custody’”) (quoting Preiser). 5 A habeas petitioner does not remain “in custody” pursuant to a conviction 6 once the sentence for the conviction has “fully expired.” Cook, 490 U.S. at 492. In 7 order for habeas jurisdiction to exist, “the challenged judgment must be ‘the source 8 of the petitioner’s custody.’” (Wright v. State of Alaska, 47 F.4th 954, 959 (9th Cir. 9 2022) (quoting Dominquez, 906 F.3d at 1136) (citations omitted). 10 Here, the Petition attacks Petitioner’s 2018 California Conviction, a 11 conviction for which he is not presently incarcerated. Petitioner concedes that he is 12 currently confined to the custody of the State of Arizona Department of Corrections, 13 Rehabilitation and Reentry as a consequence of his 2021 Arizona Conviction for 14 armed robbery, for which he is serving a sentence of up to 16 years. (Petition at 32- 15 33). However, in the Petition, liberally construed, Petitioner appears to challenge 16 his current custodial sentence on the basis that it was enhanced by the California 17 Conviction. (See, e.g., Petition at 31). The Supreme Court has recognized that, in 18 certain limited circumstances, a state prisoner may challenge expired state 19 convictions through federal habeas corpus when the prior convictions are used to 20 enhance a current state sentence. Lackawanna County Dist. Attorney v. Coss, 532 21 U.S. 394, 403-05 (2001). The court in Lackawanna reasoned that because such a 22 claim could be construed as asserting a challenge to the state sentence the petitioner 23 was then serving, as it was enhanced by the alleged invalid prior conviction, he 24 25 satisfied the “in custody” requirement. Id. at 401-02. See also Dubrin v. People of 26 the State of Calif., 720 F.3d 1095, 1097 (9th Cir. 2013) (construing pro se habeas 27 petition as challenge to sentence currently being served where such sentence had 28 been enhanced by an expired prior conviction, the validity of which petitioner 1 challenged.) However, the Supreme Court in Lackawanna further found that a 2 habeas petitioner may challenge a prior conviction used to enhance a petitioner’s 3 current sentence only in limited circumstances where there was a failure to appoint 4 counsel in violation of the Sixth Amendment as set forth in Gideon v. Wainwright, 5 372 U.S. 335 (1963) with respect to the underlying conviction. A second exception 6 was advanced by a three-judge plurality in Lackawanna for circumstances where a 7 petitioner cannot be faulted for failing to obtain a timely review of a constitutional 8 claim, either because a state court, without justification, refused to rule on a 9 constitutional claim properly presented to it, or because the petitioner uncovered 10 “compelling evidence” of his innocence after the time for review had expired that 11 could not have been timely discovered. 532 U.S. at 405-06. The Ninth Circuit 12 adopted this second Lackawanna exception in Dubrin, 720 F.3d at 1099, and it is 13 therefore binding on this Court. 14 Here, it does not appear that either of the two Lackawanna exceptions are 15 applicable. First, it appears that counsel was appointed to represent Petitioner when 16 he appeared in the proceedings underlying the California Conviction. As noted, 17 Petitioner appended numerous documents to the Petition, including, inter alia, the 18 Felony Advisement of Rights, Waiver, and Plea Form which he executed for 19 purposes of his plea of nolo contendere to the felony charge against him on 20 November 27, 2018 (Petition at 19-22); the minutes of Petitioner’s case in Los 21 Angeles Superior Court Case No. LA089450 (“Minutes”), reflecting his arraignment 22 (Petition at 24-25), his preliminary hearing (Petition at 25-28) and his plea and 23 sentencing hearing (Petition at 26-28). The Minutes reflect that the court appointed 24 25 public defender Meredith Schensul to represent Petitioner at his arraignment in Los 26 Angeles Superior Court Case No. LA089450 on November 5, 2018. (Petition at 24). 27 Counsel was present for the pendency of Petitioner’s arraignment, where Petitioner 28 entered a not guilty plea to the charge of Cal. Pen. Code § 21310. (Id.). 1 However, the Minutes also reflect that Petitioner dismissed his attorney at his 2 preliminary hearing on November 16, 2018 and requested to proceed pro per. 3 (Petition at 25). The Minutes reflect that Petitioner signed and filed a waiver 4 pursuant to Faretta v. California, 422 U.S. 806 (1975), for purposes of confirming 5 his desire to proceed without an attorney and affirm his pro per status. (Id.). 6 Accordingly, it appears Petitioner does not fall within the first Lackawanna 7 exception, since the court appointed counsel to represent him in compliance with his 8 right to counsel under the Sixth Amendment. 9 It also appears that Petitioner does not qualify under the second Lackawanna 10 exception, as he did not apparently seek timely review of his California Conviction, 11 either directly or collaterally, following his plea of nolo contendere to Cal. Pen. Code 12 § 21310, carrying a concealed dirk or dagger, on November 27, 2018. (Petition at 13 26-28). The Petition reflects that the only judicial review Petitioner has sought with 14 respect to the claims raised in the Petition was a petition for writ of certiorari to the 15 United States Supreme Court (see Petition at 11), and that he has not raised his 16 claims in the state courts. (Petition at 6-11). Further, a review of the California 17 Appellate Courts website reveals no appellate cases involving Petitioner.3 Petitioner 18 does not appear to be able to show that he cannot be faulted for failing to obtain the 19 timely review of his constitutional claims, since he apparently has not sought any 20 appellate review of his California Conviction. 21 / / / 22 / / / 23 24 3 https://appellatecases.courtinfo.ca.gov/index.cfm Pursuant to Rule 201 of the Federal 25 Rules of Evidence, the Court may take judicial notice of the dockets of the California Appellate 26 Courts. See Holder v. Holder, 305 F.3d 854, 866 (9th Cir. 2002) (taking judicial notice of opinion and briefs filed in another proceeding); United States ex rel. Robinson Rancheria Citizens Council 27 v. Borneo, Inc., 971 F.2d 244, 248 (9th Cir. 1992) (courts “may take notice of proceedings in other courts, both within the without the federal judicial system, if those proceedings have a direct 28 relation to matters at issue” (citation omitted)). 1 As the Supreme Court noted in Lackawanna, absent a finding of the limited 2 exceptions set forth above, “[i]f . . . a prior conviction used to enhance a sentence is 3 no longer open to direct or collateral attack in its own right because [petitioner] failed 4 to pursue those remedies while they were available (or because the [petitioner] did 5 no unsuccessfully), then that [petitioner] may not collaterally attack his prior 6 conviction through a [2254 petition].” 532 U.S. at 402 (citation omitted). 7 Accordingly, it appears the Court lacks jurisdiction over the Petition and that 8 Petitioner is foreclosed from attacking his California Conviction, because he has not 9 shown that he falls within either of the two narrow exceptions in Lackawanna. 10 Therefore, Petitioner is ordered to show cause as to why the Petition should not be 11 dismissed on this basis. 12 B. Petitioner has Failed to Exhaust his Available State Remedies Pursuant 13 to 28 U.S.C. § 2254. 14 Habeas relief is also precluded on the basis that Petitioner failed to exhaust 15 his available state remedies with regard to the claims raised in the Petition prior to 16 raising them in federal court. The federal habeas statute explicitly provides that a 17 habeas petition brought by a person in state custody “shall not be granted unless it 18 appears that - (A) the applicant has exhausted the remedies available in the courts of 19 the State; or (B)(i) there is an absence of available State corrective process; or (ii) 20 circumstances exist that render such process ineffective to protect the rights of the 21 applicant.” 28 U.S.C. § 2254(b)(1). Exhaustion requires that the prisoner’s 22 contentions be fairly presented to the state courts and be disposed of on the merits 23 by the highest court of the state. See James v. Borg, 24 F.3d 20, 24 (9th Cir. 1994); 24 25 Carothers v. Rhay, 594 F.2d 225, 228 (9th Cir. 1979). For purposes of exhaustion, 26 a claim has not been fairly presented unless the prisoner has described in the state 27 court proceedings both the operative facts and the federal legal theory on which his 28 claim is based. See Duncan v. Henry, 513 U.S. 364, 365-66 (1995); Picard v. 1 Connor, 404 U.S. 270, 275-78 (1971); Johnson v. Zenon, 88 F.3d 828, 830 (9th Cir. 2 1996). Petitioner has the burden of demonstrating that he has exhausted available 3 state remedies. See, e.g., Brown v. Cuyler, 669 F.2d 155, 158 (3d Cir. 1982). 4 However, the Ninth Circuit has held that, for purposes of exhaustion, pro se petitions 5 are held to a more lenient standard than counseled petitions. See Sanders v. Ryder, 6 342 F.3d 991, 999 (9th Cir. 2003); Peterson v. Lampert, 319 F.3d 1153, 1159 (9th 7 Cir. 2003) (en banc). The Ninth Circuit also has held that a federal court may raise 8 the failure to exhaust issue sua sponte and may summarily dismiss on that ground. 9 See Stone v. San Francisco, 968 F.2d 850, 856 (9th Cir. 1992); Cartwright v. Cupp, 10 650 F.2d 1103, 1104 (9th Cir. 1982) (per curiam); see also Granberry v. Greer, 481 11

U.S. 129, 134-35 (1987).

12 The Supreme Court in Lackawanna reaffirmed a habeas petitioner’s 13 obligation to exhaust his claims as required by Section 2254(b). 532 U.S. at 404. 14 (“As with any § 2254 petitioner, the petitioner must satisfy the procedure 15 prerequisites for relief including, for example, exhaustion of remedies.”) 16 Here, as previously noted, it appears from the face of the Petition that 17 Petitioner has not exhausted his available state remedies with respect to any of the 18 grounds raised in the Petition. In response to the questions on the form petition 19 asking whether he filed a direct appeal from the judgment of conviction, or whether 20 he filed an appeal to the Arizona Supreme Court, Petitioner checked the “no” box 21 for each. (See Petition at 3-4). Moreover, nothing in the Petition suggests that 22 Petitioner exhausted his grounds for relief with respect to the California Conviction 23 in the California courts, including the California Supreme Court, and a review of the 24 25 California Appellate Courts website reveals no appellate filings by Petitioner. 26 Although the Petition does indicate that Petitioner filed a petition for certiorari in the 27 United States Supreme Court, in which it appears he raised the instant claims (see 28 Petition at 4), a writ of certiorari to the Supreme Court does not satisfy the exhaustion 1 requirement of Section 2254(b)(1)(A). See, e.g., Shinn v. Ramirez, 596 U.S. 366, 2 377 (2022) (“[B]oth Congress and federal habeas courts have set out strict rules 3 requiring prisoners to raise all of their federal claims in state court before seeking 4 federal relief.”). Thus, Petitioner has not met his burden of demonstrating that he 5 exhausted his four grounds for relief in the California Appellate Courts, including 6 presentment to, and disposition on the merits by, the California Supreme Court, and 7 has therefore failed to satisfy the exhaustion requirement of Section 2254(b)(1). 8 If it were clear that the California Supreme Court would hold that Petitioner’s 9 unexhausted claims directed to the California Conviction were procedurally barred 10 under state law, then the exhaustion requirement would be satisfied.4 See Castille 11 v. Peoples, 489 U.S. 346, 351-52 (1989); Johnson, 88 F.3d at 831; Jennison v. 12 Goldsmith, 940 F.2d 1308, 1312 (9th Cir. 1991). However, it is not “clear” here that 13 the California Supreme Court will hold that Petitioner’s unexhausted claims directed 14 to his California Conviction are procedurally barred under state law. See, e.g., In re 15 Harris, 5 Cal. 4th 813, 825 (1993) (granting habeas relief where the petitioner 16 claiming sentencing error, even though the alleged sentencing error could have been 17 raised on direct appeal); People v. Sorensen, 111 Cal. App. 2d 404, 405(1952) 18 (noting that claims that fundamental constitutional rights have been violated may be 19 / / / 20 / / / 21 / / / 22 23

24 4 In that event, although the exhaustion impediment to consideration of Petitioner’s claims 25 on their merits would be removed, federal habeas review of the claims would still be barred unless Petitioner could demonstrate “cause” for the default and “actual prejudice” as a result of the alleged 26 violation of federal law, or demonstrate that failure to consider the claims would result in a 27 “fundamental miscarriage of justice.” See Coleman v. Thompson, 501 U.S. 722, 750, 111 S. Ct. 2546, 115 L. Ed. 2d 640 (1991). 28 1 raised by state habeas petition). The Court therefore concludes that this is not an 2 appropriate case for invocation of any “exception” to the requirement that a 3 petitioner’s federal claims must first be fairly presented to and disposed of on the 4 merits by the state’s highest court. 5 Further, the Court notes that this is not an appropriate case for invocation of 6 the stay-and-abeyance procedure authorized by Rhines v. Weber, 544 U.S. 269, 277- 7 78(2005), or the stay-and-abeyance procedure authorized by Calderon v. United 8 States Dist. Court (Taylor), 134 F.3d 981, 987-88 (9th Cir. 1998) and Kelly v. Small, 9 315 F.3d 1063, 1070 (9th Cir. 2004), overruled on other grounds by Robbins v. 10 Carey, 481 F.3d 1143, 1149 (9th Cir. 2007). The Rhines procedure applies to mixed 11 petitions, and the Kelly procedure applies to fully exhausted petitions. See King v. 12 Ryan, 564 F.3d 1133, 1139-40 (9th Cir. 2009). The Petition herein is neither; rather, 13 it contains solely unexhausted claims, and the Ninth Circuit has held in a post-Rhines 14 decision that the stay-and-abeyance procedure does not apply to petitions containing 15 solely unexhausted claims. See Rasberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir. 16 2006). 17 Accordingly, the Petition contains solely unexhausted claims, and is subject 18 to dismissal on this basis. See Jiminez v. Rice, 276 F.3d 478, 481 (9th Cir. 2001). 19 Therefore, Petitioner is ordered to show cause as to why the Petition should 20 not be dismissed on the basis that he has not exhausted the claims therein as required 21 pursuant to 28 U.S.C. § 2254(b)(1). 22 C. The Petition Does not Seek Appropriate Habeas Relief. 23 As previously noted, “the traditional function of the writ [of habeas corpus] is 24 25 to secure release from illegal custody.” Preiser, 411 U.S. at 484. 26 Here, however, Petitioner does not seek relief from custody, but instead seeks 27 money damages as his requested remedy. In paragraph 17 of the Petition, regarding 28 the relief sought, Petitioner states as follows: “200.00 [d]ollars per day at 10,000 to 1 one ratio plus [i]nterest from the first U.S. District Court of Arizona Court order of 2 [a]ssignment of the wrong Judge in/with [n]o [j]urisdicton to rule in this [a]ction . . 3 . and I seek [a]n upfront [j]udgment of $480,000.00 [d]ollars from the Attorney 4 General of California.” (Petition at 12). Money damages are not an available 5 remedy in an action for a writ of habeas corpus, “the purpose of which is not to 6 redress civil injury, but to release the applicant from unlawful physical 7 confinement[,]” Allen v. McCurry, 449 U.S. 90, 104 (1980) (citations omitted), and 8 an award of damages may not be sought in a petition for writ of habeas corpus. 9 Preiser, 411 U.S. at 494 (“In the case of a damages claim, habeas corpus is not an 10 appropriate or available federal remedy.”) 11 In light of Petitioner’s request for monetary damages (rather than for his 12 release from custody), it appears Petitioner’s claims are in the nature of a civil rights 13 action under 42 U.S.C. § 1983, rather than a petition for writ of habeas corpus. The 14 Supreme Court has found that “[c]hallenges to the validity of any confinement or to 15 particulars affecting its duration are the province of habeas corpus; requests for relief 16 turning on circumstances of confinement may be presented in a § 1983 action.” 17 Muhammad v. Close, 540 U.S. 749, 750 (2004) (citing Preiser, 411 U.S. at 500). 18 The Ninth Circuit has held that habeas corpus and Section 1983 are mutually 19 exclusive remedies, and that “[i]f a state prisoner’s claim does not lie at ‘the core of 20 habeas corpus,’ it may not be brought in habeas corpus but must be brought, ‘if at 21 all,’ under § 1983.” Nettles v. Grounds, 830 F.3d 922, 931 (9th Cir. 2016) (en banc) 22 (citations omitted). As noted herein, federal courts have jurisdiction over habeas 23 claims by state prisoners only where the Petition challenges the fact or duration of a 24 25 petitioner’s conviction or sentence. Nettles, 830 F.3d at 927. Such claims are 26 considered “within the core of habeas corpus.” Id. at 935 (citation omitted). 27 Conversely, a claim brought by a state prisoner that does not implicate the validity 28 or duration of his confinement – on which does not lie ‘at the core of habeas corpus 1 – must be brought pursuant to Section 1983.” (Id. at 934) (citations omitted); see 2 also Wilkinson v. Dotson, 544 U.S. 74, 86 (2005) (For “federal courts to order relief 3 that neither terminates custody, accelerate the future date of release from custody, 4 [or] reduces the level of custody” in a habeas action “would utterly sever the writ 5 from its common-law roots”) (Scalia, J., concurring). Accordingly, given 6 Petitioner’s request for money damages, it appears that the Petition raises claims 7 more suitable for a civil rights action under Section 1983 rather than a petition for 8 writ of habeas corpus pursuant to Section 2254. 9 The Supreme Court has authorized a district court to construe a habeas petition 10 as a civil rights complaint pursuant to 42 U.S.C. § 1983 in certain circumstances. 11 See, e.g., Wilwording v. Swenson, 404 U.S. 249, 251 (1971); Nettles, 830 F.3d at 12 935. However, a petition may only properly be converted to a Section 1983 13 complaint when the pleading is “amenable to conversion on its face, meaning that it 14 names the correct defendants and seeks the correct relief.” Nettles, 830 F.3d at 936. 15 Moreover, a court may convert a habeas petition to a Section 1983 complaint only 16 after advising the petitioner of the potential consequences of conversion and 17 allowing petitioner the opportunity to withdraw or amend the petition. Id. (citation 18 omitted). 19 Here, the Court is disinclined to recommend that the Petition be construed as 20 a civil rights complaint due to the significant differences in the procedural rules 21 between habeas petitions and prisoner civil rights complaints. 22 First, the Petition is not facially amenable for conversion into a Section 1983 23 civil rights complaint, as the caption does not reflect the proper defendants. The 24 25 Petition names the following as respondents: Ryan Thornell, the Director of the 26 State of Arizona Department of Corrections; the State of Arizona; the Attorney 27 General for the State of California; and the County of Los Angeles. However, Ryan 28 Thornell, the State of Arizona and the Attorney General for the State of California 1 are not proper defendants for purposes of a Section 1983 action. There are no 2 allegations in the Petition pertaining to these parties; instead, the Petition alleges, 3 inter alia, that Petitioner’s due process rights were violated in proceedings related 4 to his California Conviction and also alleges a violation under the Eighth 5 Amendment in relation to his federal proceedings in the United States District Court 6 for the District of Arizona. There are no allegations implicating Director Thornell, 7 the State of Arizona or the Attorney General of the State of California. A civil 8 complaint must include “a short and plain statement of the claim showing that the 9 pleader is entitled to relief,” Fed.R.Civ.P. 8, and the caption of the complaint must 10 name all the parties. Fed.R.Civ.P. 10(a). In turn, a plaintiff in a Section 1983 action 11 “must plead that each Government-official defendant, through the official’s own 12 individual actions, has violated the Constitution.” Ashcroft v. Iqbal, 556 U.S. 662, 13 676 (2009). Since the Petition contains no allegations of conduct by Director 14 Thornell, the State of Arizona or the Attorney General of the State of California, the 15 Petition is not amenable to conversion “on its face,” as these respondents are not 16 proper defendants for purposes of a Section 1983 action. 17 Second, the Court notes the difference in administrative requirements for a 18 habeas petition and a civil rights complaint. A habeas petitioner is required to pay a 19 filing fee of just $5.00 and may also seek relief from this filing fee by submitting an 20 application to proceed in forma pauperis, which can result in a waiver of the filing 21 fee. See Rule 3 of the Rules Governing Section 2254 Cases in the United States 22 District Courts. By contrast, the Prison Litigation Reform Act (“PLRA”) requires a 23 prisoner to pay the full amount of the $405.00 filing fee, and also requires the 24 25 submission of a copy of his prison trust account balance for the 6 months prior to 26 / / / 27 / / / 28 / / / 1 filing. 28 U.S.C. § 1915(b). Although the full $405.00 filing fee may be paid by a 2 prisoner over time, it is nonetheless significantly greater than the $5.00 filing fee for 3 a Section 2254 habeas petition, and it is Petitioner who should make the decision as 4 to whether to incur the significantly higher fee, rather than the Court. 5 In addition, conversion of the Petition to a Section 1983 civil rights complaint 6 would subject Petitioner to the “three strikes” provisions of the PLRA. Pursuant to 7 28 U.S.C. § 1915(g), the dismissal of a prisoner civil rights complaint can count as 8 a “strike” against a prisoner and can impair a prisoner’s ability to file future civil 9 rights actions. Consequently, Petitioner should be afforded the opportunity to decide 10 for himself whether to convert the allegations in the Petition into a Section 1983 11 action given the risk of incurring a possible “strike” in the event it is dismissed. 12 Nettles, 830 F.3d at 936. 13

IV.

14

CONCLUSION

15 In light of the deficiencies identified herein, it appears the Petition is subject 16 to dismissal on the basis that the Court lacks habeas jurisdiction, the claims in the 17 Petitioner are unexhausted, and the relief Petitioner seeks is more suited for a Section 18 1983 civil rights Complaint. 19 Accordingly, Petitioner is hereby ORDERED to show cause why this action 20 should not be dismissed on these basis. 21 Petitioner may alternatively file an amended habeas petition to cure the 22 deficiencies, if he believes he can so do, and discharge this Order to Show Cause. 23 Petitioner’s response is due no later than November 4, 2024. 24 25 In the event Petitioner elects instead to file a Section 1983 civil rights 26 complaint or other civil action, he should so indicate to the Court by the date his 27 response to this Order to Show Cause is due and dismiss this habeas petition. The 28 Clerk is directed to provide Petitioner with a blank Central District civil rights 1 |}complaint form, which Petitioner is encouraged to use as well as a Central District 2 ||request for dismissal form. 3 Petitioner is hereby cautioned that failing to comply with this Order will 4 |/result in the recommendation that this action be dismissed for failure to > || prosecute and/or failure to comply with the Court’s orders. 6 7 \lDated: October 7, 2024 hip / i fe 8 DAVID T. BRISTOW 9 United States Magistrate Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 16