1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ERIC B. HERNANDEZ, Case No. 1:20-cv-01171-JDP 12 Petitioner, FINDINGS AND RECOMMENDATIONS TO

DISMISS PETITION FOR WRIT OF

13 v. HABEAS CORPUS 14 KINGS COUNTY JAIL, OBJECTIONS DUE IN THIRTY DAYS 15 Respondent. ECF No. 1 16 ORDER DIRECTING CLERK OF COURT TO

ASSIGN CASE TO DISTRICT JUDGE

17 18 Petitioner Eric B. Hernandez, a state pre-trial detainee without counsel, seeks a writ of 19 habeas corpus under 28 U.S.C. § 2254.1 ECF No. 1. The matter is before the court for 20 preliminary review under Rule 4 of the Rules Governing Section 2254 Cases. Under Rule 4, the 21 judge assigned to a habeas corpus proceeding must examine the petition and order a response 22 thereto unless it “plainly appears” that the petitioner is not entitled to relief. See Valdez v. 23 Montgomery, 918 F.3d 687, 693 (9th Cir. 2019); Boyd v. Thompson, 147 F.3d 1124, 1127 (9th 24 Cir. 1998). Rule 4 was “designed to give courts an active role in summarily disposing of facially 25 defective habeas petitions.” Ross v. Williams, 896 F.3d 958, 968 (9th Cir. 2018) (citation 26 27 1 Although petitioner states that he is currently represented by counsel, the court has no record of 28 an attorney appearing on petitioner’s behalf in this case. ECF No. 1 at 6. 1 omitted). The court may dismiss claims at screening for “easily identifiable” procedural defects. 2 See id. For the foregoing reasons, we recommend that the court summarily dismiss the petition 3 Discussion 4 Petitioner makes one claim for relief: a request for his release from jail due to his risk of 5 contracting COVID-19. ECF No. 1 at 3. There are multiple reasons for the court to summarily 6 dismiss the petition. 7 First, petitioner states that he is currently being held in jail awaiting trial. ECF No. 1 at 2. 8 In Younger v. Harris, 401 U.S. 37, 44 (1971), the Supreme Court held that a federal court 9 generally cannot interfere with pending state criminal proceedings. This holding, commonly 10 referred to as the Younger abstention doctrine, is based on the principle of federal-state comity. 11 See id. In the habeas context, “[w]here . . . no final judgment has been entered in state court, the 12 state court proceeding is plainly ongoing for purposes of Younger.” Page v. King, 932 F.3d 898, 13 902 (9th Cir. 2019). Absent rare circumstances, a district court must dismiss such actions. See 14 Cook v. Harding, 190 F. Supp. 3d 921, 935, 938 (C.D. Cal. 2016), aff’d, 879 F.3d 1035 (9th Cir. 15 2018); Perez v. Ledesma, 401 U.S. 82, 85 (1971). Here, petitioner is being held in jail awaiting 16 trial on his criminal charges. ECF No. 1 at 1. Petitioner’s conclusory claim for relief does not 17 demonstrate that his situation warrants the court’s intervention in such proceedings. 18 Second, it appears that petitioner has failed to exhaust his claim before the state courts.2 19 Although petitioner states that he has presented his claim to the California Supreme Court, ECF 20 No. 1 at 5, we can find no record of this case.3 A petitioner must exhaust his claims before the 21 state courts before seeking federal habeas review. See 28 U.S.C. § 2254(b)(1)(A); Murray v.

22 2 Petitioner states that he has a pending habeas petition before the California Court of Appeal 23 which raises the same claim as that of the instant petition. ECF No. 1 at 5; see In re Eric B. Hernandez on Habeas Corpus, No. F081491 (Cal. Ct. App. Aug. 13, 2020). We have reviewed 24 the California Courts Appellate Courts Case Information online database and take judicial notice of it per Rule 201 of the Federal Rules of Evidence. See California Courts Appellate Courts Case 25 Information, https://appellatecases.courtinfo.ca.gov/search.cfm?dist=0 (search “Search by Party” for “Eric Hernandez”). A review of the database reveals that this petition was denied on August 26 13, 2020. 27 3 We can find no record of a recent habeas petition filed by petitioner before the California Supreme Court. 28 1 Schriro, 882 F.3d 778, 807 (9th Cir. 2018). The exhaustion doctrine is based on comity; it gives 2 the state courts the initial opportunity to correct the state’s alleged constitutional deprivations. 3 See Coleman v. Thompson, 501 U.S. 722, 731 (1991); Rose v. Lundy, 455 U.S. 509, 518 (1982). 4 A petitioner can satisfy the exhaustion requirement by providing the highest state court with a full 5 and fair opportunity to consider each claim before presenting it to a federal court. O’Sullivan v. 6 Boerckel, 526 U.S. 838, 845 (1999); Duncan v. Henry, 513 U.S. 364, 365 (1995); Picard v. 7 Connor, 404 U.S. 270, 276 (1971). If petitioner has exhausted his claims before the California 8 Supreme Court, he should provide proof thereof in his objections to these findings and 9 recommendations. 10 Third, petitioner’s claim is not cognizable on habeas review. Under § 2254(a), a writ of 11 habeas corpus shall be entertained on behalf of a person “in custody pursuant to the judgment of a 12 State court only on the ground that he is in custody in violation of the Constitution or laws or 13 treaties of the United States.” A federal habeas petitioner must make a claim that either the fact 14 or duration of his confinement violates clearly established federal law. See Heck v. Humphrey, 15 512 U.S. 477, 481 (1994). On the other hand, “requests for relief turning on circumstances of 16 confinement may be presented in a [42 U.S.C.] § 1983 action.” Muhammad v. Close, 540 U.S. 17 749, 750 (2004). Here, petitioner does not claim that that he is in custody in violation of clearly 18 established federal law. Rather, he claims that the conditions of his confinement—which put him 19 at risk for exposure to COVID-19—entitle him to release. Accordingly, petitioner has failed to 20 state a cognizable habeas claim, and we recommend that his petition be dismissed.4 21 Certificate of Appealability 22 A petitioner seeking a writ of habeas corpus has no absolute right to appeal a district 23 court’s denial of a petition; he may appeal only in limited circumstances. See 28 U.S.C. § 2253; 24 4 Petitioner may, if he wishes, seek relief under § 1983. When filing a § 1983 claim, courts 25 require plaintiffs to “plead that (1) the defendants acting under color of state law (2) deprived plaintiffs of rights secured by the Constitution or federal statutes.” Gibson v. United States, 781 26 F.2d 1334, 1338 (9th Cir. 1986). Although this court may convert a habeas petition to a § 1983 27 claim, we decline to do so here. First, petitioner’s allegations about the jail conditions are too conclusory to state a § 1983 claim, and petitioner has named only the jail as the respondent; 28 petitioner has not named the people who directly committed the affirmative acts or omissions that 1 Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003). Rule 11 Governing § 2254 Cases requires a 2 district court to issue or deny a certificate of appealability when entering a final order adverse to a 3 petitioner. See also Ninth Circuit Rule 22-1(a); United States v. Asrar, 116 F.3d 1268, 1270 (9th 4 Cir. 1997). A certificate of appealability will not issue unless a petitioner makes “a substantial 5 showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). This standard requires 6 the petitioner to show that “jurists of reason could disagree with the district court’s resolution of 7 his constitutional claims or that jurists could conclude the issues presented are adequate to 8 deserve encouragement to proceed further.” Miller-El, 537 U.S. at 327; accord Slack v. 9 McDaniel, 529 U.S. 473, 484 (2000). Here, petitioner has not made a substantial showing of the 10 denial of a constitutional right. Thus, we recommend that the court not issue a certificate of 11 appealability. 12 Findings and Recommendations 13 We recommend that the court dismiss the petition, ECF No. 1, and decline to issue a 14 certificate of appealability. Under 28 U.S.C. § 636(b)(1)(B) and Rule 304 of the Local Rules of 15 Practice for the United States District Court, Eastern District of California, we submit the findings 16 and recommendations to the U.S. District Court judge presiding over the case. Within thirty days 17 of the service of the findings and recommendations, any party may file written objections to the 18 findings and recommendations. That document must be captioned “Objections to Magistrate 19 20 21 22 23 24 violated his rights. Second, conversion may be unfair to petitioner. The filing fee for a habeas 25 petition is $5, and if leave to proceed in forma pauperis is granted, the fee is forgiven. For civil rights cases, however, the filing fee is $350 plus an administrative fee of $50. Under the Prisoner 26 Litigation Reform Act, the prisoner is required to pay the $350 filing fee, even if he is granted in 27 forma pauperis status, by way of deductions from the prisoner’s trust account. See 28 U.S.C. § 1915(b)(1). If we were to convert this action to a § 1983 action, the petitioner would face the 28 larger filing and administrative fees—which he might prefer not to do. 4.EU UV VEL VR RMU OPI VO ee TY VI

1 | Judge’s Findings and Recommendations.” The presiding district judge will then review the 2 | findings and recommendations under 28 U.S.C. § 636(b)(1)(C). 3 | Order 4 The clerk of court is directed to assign a district judge to this case for the purpose of 5 || reviewing these findings and recommendations. 6 7 IT IS SO ORDERED. g : —N prssann — Dated: _ August 25, 2020 9 UNI STATES MAGISTRATE JUDGE 10 11 | No. 206. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28