1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 DONALD M. PARDUE, Case No.: 25cv1835 AJB (AHG)

12 Petitioner,

ORDER DISMISSING CASE

13 v. WITHOUT PREJUDICE 14 R. ACEVEDO, Warden, 15 Respondent. 16 17 18 Donald M. Pardue (“Petitioner”), a state prisoner proceeding pro se, has filed a 19 Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254, alleging violations of 20 due process and the Eighth Amendment arising from the actions of the prison classification 21 committee at Richard J. Donovan Correctional Facility (“RJD”), where he is incarcerated, 22 which he asserts has resulted in him being held in prison beyond his release date.1 (ECF 23 24 25 1 While the instant Petition was sent to this district (see ECF No. 1 at 9), Petitioner has 26 captioned the Petition form to the San Diego County Superior Court. (See id. at 1.) 27 Petitioner’s supporting pleadings, including his declaration and a points and authorities in support of the petition, are similarly captioned to the state superior court. (See ECF No. 1- 28 1 No. 1.) Petitioner has also paid the $5.00 filing fee. (ECF No. 2.) For the reasons discussed 2 below, the case is dismissed without prejudice. 3 FAILURE TO EXHAUST STATE COURT REMEDIES 4 Upon review, it does not appear state court remedies have been exhausted as to either 5 of the two enumerated claims in the Petition. Habeas petitioners who wish to challenge 6 either their state court conviction or the length of their confinement in state prison must 7 first exhaust state judicial remedies. See 28 U.S.C. § 2254(b), (c); Granberry v. Greer, 481 8 U.S. 129, 133-34 (1987); see also Picard v. Connor, 404 U.S. 270, 275 (1971) (“[A] state 9 prisoner must normally exhaust available state judicial remedies before a federal court will 10 entertain his petition for habeas corpus.”) “A petitioner has satisfied the exhaustion 11 requirement if: (1) he has ‘fairly presented’ his federal claim to the highest state court with 12 jurisdiction to consider it,” which in this case is the California Supreme Court, “or (2) he 13 demonstrates that no state remedy remains available.” Johnson v. Zenon, 88 F.3d 828, 829 14 (9th Cir. 1996) (citations omitted); see also O’Sullivan v. Boerckel, 526 U.S. 838, 845 15 (1999) (“[S]tate prisoners must give the state courts one full opportunity to resolve any 16 constitutional issues by invoking one complete round of the State’s established appellate 17 review process.”) 18 Additionally, the claims presented in the federal courts must be the same as those 19 exhausted in state court and must also allege, in state court, how one or more of his federal 20 rights have been violated. See Picard, 404 U.S. at 276 (“Only if the state courts have had 21 the first opportunity to hear the claim sought to be vindicated in a federal habeas proceeding 22 does it make sense to speak of the exhaustion of state remedies. Accordingly, we have 23 required a state prisoner to present the state courts with the same claim he urges upon the 24 federal courts.”); see also Duncan v. Henry, 513 U.S. 364, 365-66 (1995) (“If state courts 25 are to be given the opportunity to correct alleged violations of prisoners’ federal rights, 26 27 district, the Court will construe the Petition as one intended for filing in this Court as a 28 1 they must surely be alerted to the fact that the prisoners are asserting claims under the 2 United States Constitution. If a habeas petitioner wishes to claim that an evidentiary ruling 3 at a state court trial denied him the due process of law guaranteed by the Fourteenth 4 Amendment, he must say so, not only in federal court, but in state court.”) 5 Here, Petitioner raises two claims for relief, alleging a due process violation and an 6 Eighth Amendment violation, both arising from the actions of the prison classification 7 committee in attempting to impose a violent offender designation on him which he asserts 8 has resulted in his incarceration “well beyond his actual release date based on this abuse of 9 power.”2 (ECF No. 1-3 at 8); (see also id. at 1) (in which Petitioner “alleges he is being 10 held beyond his release date due ex[c]lusively to the improper and potentially illegal 11 actions of a Unit Classification Committee (UCC).”) 12 Petitioner does not allege that he raised the claims he wishes to present here in the 13 California Supreme Court, and instead affirmatively indicates he did not seek review in the 14 15 2 The instant Petition appears on its face to challenge the duration of Petitioner’s 16 incarceration as the result of the alleged actions of the classification committee, but the 17 Court recognizes that Petitioner also repeatedly indicates that he seeks to challenge his “conditions.” (See e.g. ECF No. 1 at 5) (“This petition addresses prison conditions and has 18 no relevance to my criminal commitment.”); (see also ECF No. 1-3 at 1) (“Petitioner, 19 Donald M. Pardue, her[e]by brings this Petition for Writ of Habeas Corpus (Petition) challenging the conditions of his confinement under the Eighth and Fourteenth 20 Amendments to the United States Constitution.”) “When a state prisoner is challenging 21 the very fact or duration of his physical imprisonment, and the relief he seeks is a determination that he is entitled to immediate release or a speedier release from that 22 imprisonment, his sole federal remedy is a writ of habeas corpus,” while “a § 1983 action 23 is a proper remedy for a state prisoner who is making a constitutional challenge to the conditions of his prison life, but not to the fact or length of his custody.” Preiser v. 24 Rodriguez, 411 U.S. 475, 499-500 (1973). To the extent Petitioner seeks not to challenge 25 the length or fact of his incarceration but instead seeks to challenge his conditions of confinement, his claims may not be brought in habeas. See Nettles v. Grounds, 830 F.3d 26 922, 931 (9th Cir. 2016) (en banc) (“[W]e hold that if a state prisoner’s claim does not lie 27 at ‘the core of habeas corpus,’ it may not be brought in habeas corpus but must be brought, ‘if at all,’ under § 1983.”), quoting Preiser, 411 U.S. at 487; Skinner v. Switzer, 562 U.S. 28 1 California Supreme Court. (See ECF No. 1 at 5.) Petitioner explains that he instead sought 2 administrative review and “filed an appeal that was denied at the third level.” (Id.) If 3 Petitioner has raised his claims in the California Supreme Court, he must so specify. 4 Rule 4 of the Rules Governing Section 2254 Cases provides for summary dismissal 5 of a habeas petition “[i]f it plainly appears from the face of the petition and any attached 6 exhibits that the petitioner is not entitled to relief in the district court . . .” R. 4, Rules 7 Governing Section 2254 Cases (2019). Here, it appears plain from the Petition that 8 Petitioner is not presently entitled to federal habeas relief because Petitioner has not 9 exhausted state court remedies as to any of the enumerated claims in the Petition. See 10 Rasberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir. 2006) (“Once a district court determines 11 that a habeas petition contains only unexhausted claims, it need not inquire further into the 12 petitioner’s intentions. Instead, it may simply dismiss the habeas petition for failure to 13 exhaust.”), citing Jiminez v. Rice, 276 F.3d 478, 481 (9th Cir. 2001). 14 The Court additionally cautions Petitioner that under the Antiterrorism and Effective 15 Death Penalty Act of 1996 (AEDPA) a one-year period of limitation shall apply to a 16 petition for a writ of habeas corpus by a person in custody pursuant to the judgment of a 17 State court. The limitation period shall run from the latest of: 18 (A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review; 19

20 (B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, 21 if the applicant was prevented from filing by such State action; 22 (C) the date on which the constitutional right asserted was initially recognized 23 by the Supreme Court, if the right has been newly recognized by the Supreme 24 Court and made retroactively applicable to cases on collateral review; or

25 (D) the date on which the factual predicate of the claim or claims presented 26 could have been discovered through the exercise of due diligence. 27 28 U.S.C. § 2244(d)(1)(A)-(D). 28 /// l The statute of limitations does not run while a properly filed state habeas corpus 2 || petition is pending. 28 U.S.C. § 2244(d)(2); see Nino v. Galaza, 183 F.3d 1003, 1006 (9th 3 || Cir. 1999), but see Artuz v. Bennett, 531 U.S. 4, 8 (2000) (holding that “an application is 4 ‘properly filed’ when its delivery and acceptance [by the appropriate court officer for 5 || placement into the record] are in compliance with the applicable laws and rules governing 6 || filings.”). However, absent some other basis for tolling, the statute of limitations does run 7 || while a federal habeas petition is pending. Duncan v. Walker, 533 U.S. 167, 181-82 (2001). 8 CONCLUSION AND ORDER 9 For the reasons discussed above, the instant habeas case is DISMISSED without 10 || prejudice. If Petitioner wishes to proceed with his habeas case by challenging the fact or 11 || duration of his confinement, Petitioner must submit, no later than October 8, 2025, a copy 12 |/of this Order along with a completed First Amended Petition form that cures the pleading 13 || deficiencies outlined in the instant Order. The Clerk of Court is directed to send Petitioner 14 }/a blank 28 U.S.C. § 2254 Amended Habeas Petition form together with a copy of this 15 ||Order. If Petitioner wishes to challenge the conditions of his confinement, he must file a 16 |/new civil rights action pursuant to 42 U.S.C. § 1983, which will be given a new case 17 || number. 18 || IT IS SO ORDERED. 19 || Dated: August 8, 2025 © 20 Hon. Anthony J. attaglia 21 United States District Judge 22 23 24 25 26 27 28