1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 10 11 DREW PATTERSON BRETZ, ) Case No.: 1:20-cv-00651-SKO (HC) ) 12 Petitioner, ) ORDER DISMISSING PETITION WITH LEAVE ) TO FILE A FIRST AMENDED PETITION 13 v. ) ) [THIRTY DAY DEADLINE] 14 ) 15 UNITED STATES DISTRICT COURT, ) ) 16 Respondent. ) ) 17 18 Petitioner is a state detainee proceeding pro se and in forma pauperis with a petition for writ of 19 habeas corpus. A preliminary screening of the petition reveals that the petition fails to present any 20 cognizable grounds for relief, fails to demonstrate exhaustion of state remedies, and fails to name a 21 proper respondent. Therefore, the Court will DISMISS the petition with leave to file an amended 22 petition. 23 I. DISCUSSION 24 A. Preliminary Review of Petition 25 Rule 4 of the Rules Governing Section 2254 Cases requires the Court to make a preliminary 26 review of each petition for writ of habeas corpus. The Court must summarily dismiss a petition “[i]f it 27 plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in 28 1 the district court . . . .” Rule 41; O’Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 1990). The 2 Advisory Committee Notes to Rule 8 indicate that the Court may dismiss a petition for writ of habeas 3 corpus, either on its own motion under Rule 4, pursuant to the respondent’s motion to dismiss, or after 4 an answer to the petition has been filed. 5 B. Failure to State a Discernable Claim 6 Petitioner must state his claim with sufficient specificity. See Hendricks v. Vasquez, 908 F.2d 7 490, 491-92 (9th Cir. 1990); Wacht v. Cardwell, 604 F.2d 1245, 1246-47 (9th Cir. 1979). Rule 2(c) of 8 the Rules Governing Section 2254 Cases states: 9 The petition must: 10 (1) specify all the grounds for relief available to the petitioner; (2) state the facts supporting each ground; 11 (3) state the relief requested; (4) be printed, typewritten, or legibly handwritten; and 12 (5) be signed under penalty of perjury by the petitioner or by a person authorized to sign it for the petitioner under 28 U.S.C. § 2242. 13

14 The instant petition does not present a discernable claim for relief. Petitioner states he is in 15 state custody at the Fresno County Jail. It appears he is being detained on domestic violence charges, 16 but he does provide any specifics on the charges or at what stage he is in the criminal process. (Doc. 1 17 at 6.) In the space provided to state a ground for relief, Petitioner references a “Covid 19 relief motion 18 judgment 3/25/20 in the Superior Court of California.” (Doc. 1 at 3.) He states that detainees are able 19 to raise a motion for release on their own recognizance in the state court. (Doc. 1 at 3.) He then 20 requests that he be granted a detention hearing so that he can be released on his own recognizance. 21 (Doc. 1 at 3.) 22 It is unclear why Petitioner has filed the instant federal petition concerning the state court’s 23 provision allowing detainees to file motions for release. He alleges that the California court system at 24 the moment has a failure to meet adequate due process in accordance with the 3/25/20 motion, but he 25 fails to elaborate on this allegation. He does not state how or why the state system has failed, nor does 26 27 1 The Rules Governing Section 2254 Cases in the United States Courts (Habeas Rules) are also appropriately applied to 28 proceedings undertaken pursuant to 28 U.S.C. § 2241. Habeas Rule 1(b). 1 he state why the federal court has jurisdiction to intervene in a state court’s failure to abide by its own 2 process. To the extent Petitioner wishes to challenge the state court’s own motion procedure, he 3 should do so in the state court. 4 Although Petitioner is in state custody at the Fresno County Jail, he references a federal hold 5 that was placed on him on September 25, 2017. He states no charges have been filed and there is no 6 case number. He provides no further information on this reference or why it is significant in this case. 7 Petitioner fails to identify any of his grounds for relief with any specificity and he fails to 8 support his claims with sufficient facts. Therefore, the petition must be dismissed. 9 C. Failure to State a Cognizable Federal Claim 10 The basic scope of habeas corpus is prescribed by statute. Title 28 U.S.C. § 2254(a) states: 11 The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to a 12 judgment 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 States. 13 14 (emphasis added). See also Rule 1 to the Rules Governing Section 2254 Cases in the United States 15 District Court. Title 28 U.S.C. § 2241(c)(3) provides that the writ of habeas corpus shall not extend to 16 a prisoner unless “[h]e is in custody in violation of the Constitution or laws or treaties of the United 17 States.” The Supreme Court has held that “the essence of habeas corpus is an attack by a person in 18 custody upon the legality of that custody . . .” Preiser v. Rodriguez, 411 U.S. 475, 484 (1973). 19 Petitioner does not allege a violation of the Constitution or federal law, nor does he argue that 20 he is in custody in violation of the Constitution or federal law. Petitioner does not allege that the 21 adjudication of his claims in state court “resulted in a decision that was contrary to, or involved an 22 unreasonable application of, clearly established Federal law, . . . or resulted in a decision that was 23 based on an unreasonable determination of the facts . . . .” 28 U.S.C. § 2254. 24 Therefore, Petitioner fails to state a cognizable federal habeas claim and the petition must be 25 dismissed. 26 D. Failure to Name a Proper Respondent 27 Petitioner names the United States District Court as Respondent in this matter. A petitioner 28 seeking habeas corpus relief must name the officer having custody of him as the respondent to the 1 petition. 28 U.S.C. § 2242; Rule 2 (a) of the Rules Governing § 2254 Cases; Ortiz-Sandoval v. 2 Gomez, 81 F.3d 891, 894 (9th Cir. 1996); Stanley v. California Supreme Court, 21 F.3d 359, 360 (9th 3 Cir. 1994). Normally, the person having custody of an incarcerated petitioner is the warden of the 4 prison in which the petitioner is incarcerated because the warden has "day-to-day control over" the 5 petitioner. Brittingham v. United States, 982 F.2d 378, 379 (9th Cir. 1992); see also Stanley, 21 F.3d 6 at 360. However, the chief officer in charge of state penal institutions is also appropriate. Ortiz, 81 7 F.3d at 894; Stanley, 21 F.3d at 360. Where a petitioner is on probation or parole, the proper 8 respondent is his probation or parole officer and the official in charge of the parole or probation 9 agency or state correctional agency. Id. 10 Petitioner’s failure to name a proper respondent requires dismissal of his habeas petition for 11 lack of jurisdiction. Stanley, 21 F.3d at 360; Olson v. California Adult Auth., 423 F.2d 1326, 1326 12 (9th Cir. 1970); see also Billiteri v. United States Bd. Of Parole, 541 F.2d 938, 948 (2nd Cir. 1976). 13 However, the Court will give Petitioner the opportunity to cure this defect by amending the petition to 14 name a proper respondent, such as the warden or officer in charge of his facility. See West v. 15 Louisiana, 478 F.2d 1026, 1029 (5th Cir. 1973), vacated in part on other grounds, 510 F.2d 363 (5th 16 Cir. 1975) (en banc) (allowing petitioner to amend petition to name proper respondent); Ashley v. 17 State of Washington, 394 F.2d 125 (9th Cir. 1968) (same). Petitioner may correct this deficiency in 18 his First Amended Petition. 19 E. Failure to Exhaust State Remedies 20 A petitioner who is in state custody and wishes to collaterally challenge his conviction by a 21 petition for writ of habeas corpus must exhaust state judicial remedies. 28 U.S.C. § 2254(b)(1). The 22 exhaustion doctrine is based on comity to the state court and gives the state court the initial 23 opportunity to correct the state's alleged constitutional deprivations. Coleman v. Thompson, 501 U.S. 24 722, 731 (1991); Rose v. Lundy, 455 U.S. 509, 518 (1982); Buffalo v. Sunn, 854 F.2d 1158, 1163 (9th 25 Cir. 1988). 26 A petitioner can satisfy the exhaustion requirement by providing the highest state court with a 27 full and fair opportunity to consider each claim before presenting it to the federal court. Duncan v. 28 Henry, 513 U.S. 364, 365 (1995); Picard v. Connor, 404 U.S. 270, 276 (1971); Johnson v. Zenon, 88 1 F.3d 828, 829 (9th Cir. 1996). A federal court will find that the highest state court was given a full 2 and fair opportunity to hear a claim if the petitioner has presented the highest state court with the 3 claim's factual and legal basis. Duncan, 513 U.S. at 365 (legal basis); Kenney v. Tamayo-Reyes, 504 4 U.S. 1, 112 S.Ct. 1715, 1719 (1992) (factual basis). 5 Additionally, the petitioner must have specifically told the state court that he was raising a 6 federal constitutional claim. Duncan, 513 U.S. at 365-66; Lyons v. Crawford, 232 F.3d 666, 669 (9th 7 Cir.2000), amended, 247 F.3d 904 (2001); Hiivala v. Wood, 195 F.3d 1098, 1106 (9th Cir.1999); 8 Keating v. Hood, 133 F.3d 1240, 1241 (9th Cir.1998). In Duncan, the United States Supreme Court 9 reiterated the rule as follows: 10 In Picard v. Connor, 404 U.S. 270, 275 . . . (1971), we said that exhaustion of state remedies requires that petitioners "fairly presen[t]" federal claims to the state courts in 11 order to give the State the "'opportunity to pass upon and correct alleged violations of the prisoners' federal rights" (some internal quotation marks omitted). If state courts are to 12 be given the opportunity to correct alleged violations of prisoners' federal rights, they must surely be alerted to the fact that the prisoners are asserting claims under the United 13 States Constitution. If a habeas petitioner wishes to claim that an evidentiary ruling at a state court trial denied him the due process of law guaranteed by the Fourteenth 14 Amendment, he must say so, not only in federal court, but in state court.

15 Duncan, 513 U.S. at 365-366. The Ninth Circuit examined the rule further, stating: 16 Our rule is that a state prisoner has not "fairly presented" (and thus exhausted) his federal claims in state court unless he specifically indicated to that court that those claims were 17 based on federal law. See Shumway v. Payne, 223 F.3d 982, 987-88 (9th Cir. 2000). Since the Supreme Court's decision in Duncan, this court has held that the petitioner must 18 make the federal basis of the claim explicit either by citing federal law or the decisions of federal courts, even if the federal basis is “self-evident," Gatlin v. Madding, 189 F.3d 19 882, 889 (9th Cir. 1999) (citing Anderson v. Harless, 459 U.S. 4, 7 . . . (1982), or the underlying claim would be decided under state law on the same considerations that would 20 control resolution of the claim on federal grounds. Hiivala v. Wood, 195 F3d 1098, 1106- 07 (9th Cir. 1999); Johnson v. Zenon, 88 F.3d 828, 830-31 (9th Cir. 1996); . . . . 21 In Johnson, we explained that the petitioner must alert the state court to the fact that the 22 relevant claim is a federal one without regard to how similar the state and federal standards for reviewing the claim may be or how obvious the violation of federal law is. 23

24 Lyons v. Crawford, 232 F.3d 666, 668-669 (9th Cir. 2000). 25 In the instant petition before the Court, Petitioner fails to state whether he sought relief in the 26 state courts. If the grounds were not presented to the state courts including the California Supreme 27 Court, they are unexhausted and the petition must be dismissed to provide Petitioner an opportunity to 28 exhaust the claims. 28 U.S.C. § 2254(b)(1); Rose, 455 U.S. at 521-22. 1 F. Conclusion 2 The petition must be dismissed for the above-stated reasons. Petitioner will be given an 3 opportunity to file a first amended petition to cure the deficiencies. Petitioner is advised that failure to 4 file a petition in compliance with this order (i.e., a completely filled-out petition with cognizable 5 federal claims clearly stated, with exhaustion of state remedies clearly stated, and with a proper 6 respondent clearly stated) within the allotted time will result in a recommendation that the petition be 7 dismissed and the action be terminated. Petitioner is advised that the amended petition should be titled 8 “First Amended Petition” and must reference the instant case number. 9 II. ORDER 10 Based on the foregoing, IT IS HEREBY ORDERED: 11 1) The Petition for Writ of Habeas Corpus is DISMISSED WITHOUT PREJUDICE for 12 failure to state a claim, failure to exhaust state remedies, and failure to name a proper 13 respondent; and 14 2) Petitioner is GRANTED thirty days from the date of service of this order to file a First 15 Amended Petition. 16 17 IT IS SO ORDERED.

18 Sheila K. Oberto Dated: May 12, 2020 /s/ . 19 UNITED STATES MAGISTRATE JUDGE

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